[No. 78984-3. En Banc.]
Argued June 14, 2007. Decided November 8, 2007.
[1] Indictment and Information — Sufficiency — Review — Standard of Review. A challenge to the sufficiency of a charging document is reviewed by an appellate court de novo. [2] Criminal Law — Trial — Instructions — Formula Instruction — Review — Standard of Review. The sufficiency of a "to-convict" instruction in a criminal trial is reviewed by an appellate court de novo. [3] Trial — Instructions — Review — Considered as a Whole — In General. An appellate court reviews jury instructions in the context of the instructions as a whole. [4] Criminal Law — Trial — Instructions — Formula Instruction — Omission of Element — Review — Other Instructions. An appellate court reviewing the sufficiency of a "to-convict" instruction may not rely on other instructions to supply the element missing from the "to-convict" instruction. [5] Indictment and Information — Sufficiency — Notice of Charge — Essential Elements — Necessity. A charging document must allege facts supporting every essential element of the offense charged so as to apprise the accused of the nature of the crime so that the accused can prepare an adequate defense. [6] Criminal Law — Crimes — Elements — Source — Statute. The elements of a crime are those facts the State must prove to sustain a conviction. The first place to look to determine the elements of a crime is the statute defining the crime. [7] Bail and Recognizance — Bail Jumping — Elements — In General. The elements of the crime of bail jumping under RCW 9A.76.170 are that the defendant (1) was held for, charged with, or convicted of a particular crime; (2) was released by court order or admitted to bail with the requirement of a subsequent personal appearance; and (3) knowingly failed to appear as required. [8] Bail and Recognizance — Bail Jumping — Elements — Penalty Classification. Neither the penalty classification of the crime of bail jumping nor the penalty classification of the underlying offense on which the charge is based is an essential element of the crime of bail jumping, and neither need be alleged in the charging document. [9] Indictment and Information — Sufficiency — Review — Failure To Raise in Trial Court — Liberal Construction. When a challenge to a charging document is raised for the first time on appeal, the reviewing court will liberally construe the document in favor of validity. [10] Indictment and Information — Sufficiency — Review — Failure To Raise in Trial Court — Test. The sufficiency of a charging document challenged by a defendant for the first time on appeal is determined by applying a two-part test: (1) do the necessary facts appear in any form or, by fair construction, can they be found in the charging document and, if so, (2) did the inartful language that caused a lack of notice actually prejudice the defendant? The second part of the test allows the court to look outside the charging document to determine whether the defendant suffered actual prejudice. [11] Bail and Recognizance — Bail Jumping — Information — Sufficiency — Liberal Construction — Allegation of Underlying Offense. Under the liberal construction standard for determining the sufficiency of a charging document challenged for the first time on appeal, an information charging bail jumping that alleges the underlying offense by name and that it is a felony is constitutionally sufficient to charge the accused with bail jumping under RCW 9A.76.170. [12] Criminal Law — Trial — Instructions — Formula Instruction — All Elements — Necessity. A "to-convict" instruction in a criminal trial must include all of the elements of the crime charged because the jury uses it to determine the defendant's guilt or innocence. [13] Bail and Recognizance — Bail Jumping — Instructions — Formula Instruction — Elements — Penalty Classification. In a prosecution for bail jumping under RCW 9A.76.170, neither the penalty classification of the crime nor the class of the underlying offense on which the charge is based need be included in the "to-convict" instruction. The penalty classification bears on sentencing, and sentencing issues are not for the jury. [14] Bail and Recognizance — Bail Jumping — Instructions — Formula Instruction — Sufficiency — Allegation of Underlying Offense. In a prosecution for bail jumping under RCW 9A.76.170, the "to-convict" instruction given to the jury is constitutionally sufficient to establish the penalty classification for the offense if it requires the jury to find that the defendant was charged with a particular named underlying offense and if additional exhibits admitted into evidence state the classification of the underlying offense. [15] Bail and Recognizance — Bail Jumping — Elements — Underlying Offense — Controlled Substances Offense — Name of Specific Substance. In a prosecution for bail jumping under RCW 9A.76.170 in which the underlying offense is a controlled substance offense, the name of the specific controlled substance is not an essential element of the crime that must be alleged in the charging document if the identity of the controlled substance does not increase the maximum sentence that may be imposed upon conviction of the crime. Nature of Action: Prosecution for bail jumping based on a failure to appear at a scheduled hearing on a charge of unlawful possession of a controlled substance that was later dismissed. Superior Court: The Superior Court for Snohomish County, No. 03-1-00829-4, Thomas J. Wynne, J., on November 10, 2004, entered a judgment on a verdict of guilty. Court of Appeals: The court affirmed the judgment at 133 Wn. App. 714 (2006), holding that the penalty classification of bail jumping is not an essential element of the charge and is not required to be included in the charging document or the to-convict instruction given at trial, and that the defendant does not have a constitutional right to have a jury determine the penalty classification of the crime for sentencing purposes. Supreme Court: Holding that neither the penalty classification of the crime of bail jumping nor the class of the underlying offense on which the charge is based is an essential element of the crime of bail jumping and that neither is required to be included in the charging document or in the to-convict instruction given at trial, the court affirms the decision of the Court of Appeals and the judgment. Nancy P. Collins- (of Washington Appellate Project), for petitioner. Janice E. Ellis-, Prosecuting Attorney, and Constance M. Crawley-, Deputy, for respondent. En Banc ¶1 J.M. JOHNSON, J. — The question before us is whether the classification of the underlying felony or misdemeanor is an essential element of bail jumping and therefore must be included in both the information and the to-convict jury instruction. ¶2 A jury convicted Demetrius Williams of bail jumping based on the underlying charge of possession of a controlled substance. On appeal, Williams argues that the information should have identified the classification (A, B, C felony or misdemeanor) of the alleged crime. He also contends that the to-convict jury instruction should have contained the classification of his underlying offense. ¶3 We find that the penalty class of the underlying charge not an essential element of bail jumping and thus is not required in either the charging documents or the to-convict jury instruction. We therefore affirm the ruling of the appellate court. FACTS AND PROCEDURAL HISTORY ¶4 On April 11, 2003, Demetrius T. Williams was charged in Snohomish County Superior Court with "possess[ion of] a controlled substance, to wit: cocaine; proscribed by RCW 69.50.401(d), a felony." Clerk's Papers (CP) at 102. The State's first information alleged Williams did "on or about the 11th day of February, 2003 . . . unlawfully possess a controlled substance." CP at 102-03. The affidavit of probable cause alleged that after Williams was arrested, a search of his person revealed several $100 bills in his pants pocket and 1.3 grams of cocaine. CP at 100. ¶5 On December 4, 2003, Williams missed his omnibus hearing, and the court issued a bench warrant for his arrest. Based on Williams' failure to appear at the hearing, the State filed an amended information on April 23, 2004, adding one count of bail jumping to the cocaine possession charge. At a pretrial suppression hearing on May 18, 2004, the trial court granted Williams' motion to suppress and dismissed the possession charge. On the same day, the State filed a second amended information charging Williams solely with bail jumping. The charging documents that accompanied the information alleged Williams had been charged with "Possession of a Controlled Substance, a felony [and] did fail to appear as required, proscribed by RCW 9A.76.170(1), a felony." CP at 86. ¶6 On appeal, Williams argued that the penalty class of the underlying offense is an essential element of bail jumping. He contended that the charging information should have identified the classification (A, B, C felony or misdemeanor) of the alleged crime. He also argued that the to-convict jury instruction should have contained the classification of his underlying offense. ¶7 The Court of Appeals rejected Williams' arguments and upheld the trial court decision. State v. Williams, 133 Wn. App. 714, 136 P.3d 792 (2006). Applying this court's analysis in State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005), the court concluded the express language of RCW 9A.76.170(1) set forth all of the essential elements of bail jumping. The court distinguished the singular crime of bail jumping from the various levels of penalties found in the third part of the statute. RCW 9A.76.170(3). It held that the penalty class of the underlying charge is not an implied essential element of the crime; it merely determines the sentencing length following the actual conviction. STANDARD OF REVIEW ANALYSIS A. Charging Documents ". . . . "(3) Bail jumping is: "(a) A class A felony if the person was held for, charged with, or convicted of murder in the first degree; "(b) A class B felony if the person was held for, charged with, or convicted of a class A felony other than murder in the first degree; "(c) A class C felony if the person was held for, charged with, or convicted of a class B or class C felony; "(d) A misdemeanor if the person was held for, charged with, or convicted of a gross misdemeanor or misdemeanor." ¶12 We agree with the reasoning set forth by Division One. An examination of the statute demonstrates that the actual elements of the crime are clearly set forth in the first section, without reference to the penalty section. ¶13 Under Washington law, to be convicted of bail jumping, the defendant must be charged with "a particular [underlying] crime." Pope, 100 Wn. App. at 627. Using this standard, the courts have invalidated a number of generic charging attempts. For example, in Ibsen, 98 Wn. App. at 215 (quoting CP at 1), the information simply noted that the defendant had " 'been admitted to bail with the requirement of a subsequent personal appearance' " in court. This generic description was found constitutionally insufficient because it did not allow the accused to plan a defense. Id. Another instance of insufficient charging language is found in State v. Green, 101 Wn. App. 885, 888, 6 P.3d 53 (2000), where the information charged only "Cause No. 98-1-00123-2" rather than name the particular crime. Finally, in Pope, 100 Wn. App. at 629-30, the court held that information that merely stated that the defendant had failed to appear " 'regarding a felony matter' " (emphasis omitted) was constitutionally insufficient. ¶15 Additionally, when a charging document is challenged for the first time on appeal, it must be construed liberally. Thus, we need only determine if the necessary facts appear in any form in the charging document. Ibsen, 98 Wn. App. at 216. The test for the liberal interpretation of the document is: "(1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?" Kjorsvik, 117 Wn.2d at 105-06. ¶16 Applying this standard, we find that the charging information, construed liberally, was sufficient under the first prong of the Kjorsvik test. Id. at 105. The charging information clearly stated that Williams was charged with "Possession of a Controlled Substance, a felony" and as a result, he faced felony bail jumping. CP at 86. Due to this twice referenced felony charge, Williams cannot point to any lack of notice due to the inartful phrasing of the information. ¶17 The second prong of the Kjorsvik test allows the court to look outside the information to determine whether the defendant suffered actual prejudice. 117 Wn.2d at 106. The court notes that "[i]t is possible that other circumstances of the charging process can reasonably inform the defendant in a timely manner of the nature of the charges." Id. In the instant case, the information was accompanied by a statement of probable cause, which detailed the 1.3 grams of cocaine found on Williams, along with several hundred dollars. Williams was not actually prejudiced because he could adequately prepare his defense. He also received proper notice, which is the ultimate goal of the charging documents. We affirm the ruling of appellate court and hold that the penalty classification of bail jumping is not an essential element of that crime and is not necessary for charging information to be sufficient. B. To-Convict Instructions Instruction No. 3 : To convict the defendant of the crime of bail jumping as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That the defendant was charged with Possession of a Controlled Substance; (2) That the defendant had been released by court order or admitted to bail with the requirement of a subsequent personal appearance before that court; (3) That on or about the 4th of December, 2003, the defendant knowingly failed to appear as required by a court; and (4) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. CP at 75. the penalty classification is relevant only to the sentence to be imposed on conviction, a topic the jury is not even permitted to consider in its deliberations. It is not an element of the crime, so there was no infirmity in the information or the "to convict" instruction here. Williams, 133 Wn. App. at 716 (footnote omitted). The court, citing Miller, 156 Wn.2d at 27, characterized the classification of the bail jumping charge as a legal question outside of the jury's domain because it is neither an express nor implied element of the crime. See Williams, 133 Wn. App. at 719-20; see also Miller, 156 Wn.2d at 24 (Where the validity of a no-contact order was not an express statutory element of the crime, it was not a necessary part of the to-convict instruction. Rather, it was a "question of law appropriately within the province of the trial court to decide."). Similarly, the court in Gonzalez-Lopez held that the express elements of bail jumping under RCW 9A.76.170(1) do not include the penalty clauses under subsection (3), and it went on to approve a to-convict bail jumping instruction that was predicated on " 'Attempted Child Molestation in the First Degree, a felony,' " 132 Wn. App. at 629, 639. The court stated, "[t]here is no need to construe the statute. The words are plain and unambiguous." Id. at 629. ¶20 We agree with the reasoning of the Court of Appeals in both the current case and in Gonzalez-Lopez. Subsection (1) of RCW 9A.76.170 outlines the elements of bail jumping and does not explicitly or implicitly reference the penalties in subsection (3). The underlying offense is merely a gateway to get to the separate bail jumping charge, and a simple identification of the alleged crime is sufficient. We hold that the classification of the underlying crime is not an essential element of bail jumping and, therefore, does not have to be included in the to-convict instruction. ¶22 As a final note, any jury misunderstanding of the underlying charge could have been only in Williams' favor, i.e., if the jury thought the underlying charge was a misdemeanor drug charge (marijuana), this is a lesser charge than Williams actually jumped. We affirm the Court of Appeals and hold that the to-convict instruction was proper. C. Apprendi ¶23 Lastly, we must analyze whether the to-convict instruction in the current case was proper under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The Supreme Court in United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), characterized Apprendi's holding as follows: "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (Emphasis added.) In Blakely v. Washington, 542 U.S. 296, 311, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Court interpreted the statutory maximum to be the high end of the standard range, or an exceptional sentence. ¶25 Williams correctly argues that any fact that imposes more serious punishment is an essential element of the offense and must be alleged in a proper to-convict instruction or information under Apprendi. ¶26 We find Williams' reasoning unpersuasive because unlawful possession of any controlled substance (except marijuana) in Washington is either a class B or C felony. Id. Because the charging information related to the crime for which he failed to appear alleged felony possession (and the statement of probable cause for that crime identified cocaine), misdemeanor marijuana possession is easily ruled out. Thus, only one penalty section could apply. The Goodman issue is not present because felony possession of any drug would have resulted in the same sentence. See RCW 9A.76.170(3)(c). ¶27 Furthermore, the sentence derived from the to-convict instruction was proper under Apprendi and Blakely. There is no violation because Williams' 43 month sentence was at the low end of the recommended 43-57 month range. This is not the high end of the range or the maximum sentence that the judge could impose based on the facts proved to the jury. See Blakely, 542 U.S. at 303; Apprendi, 530 U.S. at 491 (overturning a first degree sentence given to a second degree conviction). Here, Williams fails to satisfy the threshold condition of Apprendi that the actual sentence imposed be longer than the maximum sentence for the crime for which a defendant has been validly convicted. 530 U.S. at 491. Williams received the lowest possible sentence recommended by the sentencing guidelines. We find no violation of Apprendi or Blakely in the current case. CONCLUSION ¶28 In sum, "[w]hile the penalties for bail jumping are divided into classes, the crime itself is not." Gonzalez-Lopez, 132 Wn. App. at 635. Therefore, the classification for sentencing purposes of both the underlying offense and the bail jumping charge is a question of law for the judge. In fact, 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 1.02 (2d ed. 1994) (WPIC) prohibits jurors from considering punishment in their deliberations. ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, BRIDGE, CHAMBERS, OWENS, and FAIRHURST, JJ., concur.