105 Wn.2d 67, IN RE TAYLOR

CITE:          105 Wn.2d 67, 711 P.2d 345

               IN RE TAYLOR

CAUSE NUMBER: 51747-9

FILE DATE:     December 26, 1985

CASE TITLE: In the Matter of the Personal Restraint of
               Andrew Taylor, Petitioner.

[1] Criminal Law - Crimes - Discretion To Charge - Equal Protection. The fact that certain conduct violates more than one penal statute does not deny the defendant equal protection of the laws so long as the prosecutor's charging discretion is restricted by the crimes having different elements.

[2] Statutes - Construction - Implied Incorporation of Other Statute. A statute will not be construed as incorporating provisions of another statute if the first statute is unambiguous, is complete in itself, and neither refers to nor conflicts with the second statute.

[3] Unemployment Compensation - Employee's Violation - Proper Charge. The crime of knowingly giving false information or withholding material information in conjunction with an unemployment compensation claim (RCW 50.36.010) is not a special crime which must be charged to the exclusion of the crime of theft under RCW 9A.56.

NATURE OF ACTION: Action seeking relief from personal restraint. The petitioner had pleaded guilty to first degree theft for accepting unemployment compensation while employed.

Supreme Court: Holding that charging the theft felony rather than the misdemeanor of giving false information did not violate the petitioner's right to equal protection of the laws, the court DENIES the petition.

COUNSEL:      MITCHELL A. RIESE of EVERGREEN LEGAL SERVICES, for petitioner.

SETH R. DAWSON, PROSECUTING ATTORNEY, and SETH AARON FINE, DEPUTY, for respondent.

AUTHOR OF MAJORITY OPINION: Brachtenbach, J.-

MAJORITY OPINION: Petitioner's personal restraint petition raises an equal protection issue. Petitioner was charged with and pleaded guilty to first degree theft. The charge arose from petitioner's receipt of unemployment benefits while in fact employed.

Petitioner's conduct was a violation of RCW 50.36.010 which involves knowingly giving false information or withholding material information as required by the Employment Security Act, RCW Title 50. 1


1 RCW 50.36.010 provides in relevant part:

"It shall be unlawful for any person to knowingly give any
      false information or withhold any material information required
      under the provisions of this title. Any person who violates
      any of the provisions of this title which violation is declared
      to be unlawful, and for which no contrary provision is made,
      shall be guilty of a misdemeanor . . ."



That same conduct was a violation of RCW 9A.56.030, the first degree theft statute. Violation of RCW 50.36.010 is a misdemeanor; violation of RCW 9A.56.030 is a felony.

Thus arises petitioner's equal protection argument. Accepting petitioner's version of the facts, it appears that petitioner could have been charged under either statute. If there was unfettered prosecutorial discretion, there would be an equal protection issue. SEE STATE v. ZORNES, 78 Wn.2d 9, 475 P.2d 109 (1970).

[1] However, we have long held that there is no equal protection violation when the crimes the prosecutor has the discretion to charge require proof of different elements. STATE v. WANROW, 91 Wn.2d 301, 312, 588 P.2d 1320 (1978); STATE v. REID, 66 Wn.2d 243, 401 P.2d 988 (1965). That is the case here.

To commit the offense defined in RCW 50.36.010, one must "knowingly give any false information or withhold any material information required under the provisions of [the employment compensation statutes]." In contrast, first degree theft, as charged in the present case, requires proof of the following elements: (1) by color or aid of deception, 2


2 This element is defined in RCW 9A.56.010, which provides in relevant part:

      "(2) 'By color or aid of deception' means that the deception
      operated to bring about the obtaining of the property . . .

      ". . .

      "(4) 'Deception' occurs when an actor knowingly:

      "(a) Creates or confirms another's false impression which
      the actor knows to be false; or

      "(b) Fails to correct another's impression which the actor
      previously has created or confirmed; or

      "(c) Prevents another from acquiring information material
      to the disposition of the property . . ."



(2) obtains control over another's property, (3) valued in excess of $1,500, (4) with the intent to deprive another of such property. RCW 9A.56.020(1)(b); RCW 9A.56.030(1)(a).

It is evident that the second, third, and fourth elements of first degree theft need not be proved to sustain a conviction for violation of RCW 50.36.010. RCW 50.36.010 merely proscribes the knowing giving of false information; it is not necessary that one prosecuted for this offense have actually obtained unemployment benefits of any value. Nor must the State prove the intent to deprive elements of theft. Because these additional elements must be proved when a person is charged with first degree theft, petitioner was not denied equal protection.

[2] Petitioner's argument that RCW 50.36.010 incorporates the elements of RCW 50.20.070 is without merit. RCW 50.20.070 provides in relevant part:

"     Irrespective of any other provisions of this title
      an individual shall be disqualified for benefits for any
      week with respect to which he has knowingly made a false
      statement or misrepresentation involving a material fact
      or knowingly failed to report a material fact and has
      thereby obtained or attempted to obtain any benefits under
      the provisions of this title . . .

This statute, unlike RCW 50.36.010, does not impose a criminal penalty for violation of its provisions; it merely provides a basis for disqualifying a claimant from receiving benefits. Although some of the language of the two statutes is similar, this in and of itself does not indicate that the Legislature intended one statute to incorporate the elements of the other. If the language of a statute is clear and plain, we will not read things into it which are not there. ALLEN v. EMPLOYMENT SEC. DEP'T, 83 Wn.2d 145, 148, 516 P.2d 1032 (1973). RCW 50.36.010 expressly creates and defines the misdemeanor offense of giving false information. It neither makes reference to nor is in conflict with the disqualification provisions of RCW 50.20.070. Absent a clearer indication of legislative intent, we cannot accept petitioner's theory of incorporation.

[3] Petitioner argues that where two statutes are concurrent, the special statute prevails over the general. SEE, E.G., STATE v. SHRINER, 101 Wn.2d 576, 580, 681 P.2d 237 (1984); STATE v. DANFORTH, 97 Wn.2d 255, 257-58, 643 P.2d 882 (1982); STATE v. CANN, 92 Wn.2d 193, 197, 595 P.2d 912 (1979). However, application of this rule of statutory construction is precluded by the express language of RCW 50.36.010, which provides:

"     The penalty prescribed in this section shall not
      be deemed exclusive, but any act which shall constitute
      a crime under any law of this state may be the basis of
      prosecution under such law notwithstanding that it may
      also be the basis for prosecution under this section.

This language clearly indicates that the Legislature did not intend RCW 50.36.010 to preempt prosecution under the theft statutes, RCW 9A.56.

Even without this language, the general/special rule is not applicable in the present case. Petitioner mistakenly characterizes the general theft statute, RCW 9A.56, and the special unemployment compensation statute, RCW 50.36.010, as concurrent statutes. However, for purposes of the general/special rule, statutes are concurrent if "the general statute will be violated in each instance where the special statute has been violated." STATE v. SHRINER, SUPRA at 580. A person who violates RCW 50.36.010 does not necessarily violate the general theft statute because, as previously indicated, the theft statute requires proof of additional elements that need not be proved for a violation of RCW 50.36.010. Thus, the statutes are not concurrent. Petitioner was properly charged under the general theft statute.

In summary, we hold that the decision to charge petitioner with first degree theft instead of a violation of RCW 50.36.010 was not based on the prosecutor's unfettered discretion, but on the ability to prove the additional elements of theft. Under these circumstances, petitioner was not denied equal protection. The personal restraint petition is denied.

CONCURRING JUDGES: Dolliver, C.J., and Utter, Dore, Pearson, Andersen, Callow, Goodloe, and Durham, JJ., concur.

POST-OPINION INFORMATION: