Opinion
No. 2367-3.
March 28, 1978.
[1] Arson — Fire in Dwelling — Degree of Offense — Prosecutorial Discretion. Knowingly and maliciously causing a fire in a dwelling constitutes first-degree arson under RCW 9A.48.020. A prosecutor does not have discretion to charge such act as second-degree arson under RCW 9A.48.030 even though the latter statute refers to fires in buildings and "building" is defined as including any dwelling.
[2] Criminal Law — Punishment — Multiple Convictions — Phasing of Sentences. The designation of certain sentences arising out of a multiple count information to run consecutively with the remaining sentences to run concurrently lies within the discretion of the trial court under RCW 9.92.080.
Nature of Action: Prosecution on four counts of first-degree arson and five counts of second-degree burglary based on fires which were set in four separate unoccupied buildings. The defendant pleaded guilty to the burglary charges.
Superior Court: The Superior Court for Kittitas County, No. C-7573, W.R. Cole, J., on March 28, 1977, entered a judgment on a verdict of guilty as to the arson charges. The sentence for one of the burglary counts was set consecutively to the others.
Court of Appeals: Holding that the first-degree arson statute supersedes the second-degree statute as to fires in dwellings, and finding no abuse of discretion in the sentencing, the court affirms the convictions and sentences.
John P. Gilreath and Dano, Cone, Fraser Gilreath, for appellant.
Joseph Panattoni, Prosecuting Attorney, for respondent.
Defendant Timothy Lunstrum appeals from convictions on four counts of first-degree arson, and five counts of second-degree burglary. It is not disputed that he set fire to four separate unoccupied buildings which were used as dwellings. After a trial, he was found guilty. He pleaded guilty to five counts of burglary.
Two issues are presented:
1. Whether the inclusion of the term dwelling (RCW 9A.04.110(7)) within the definition of building (RCW 9A.04.110(5)) permits the prosecutor unconstitutional discretion to charge either first-degree or second-degree arson on the same set of facts; and
RCW 9A.04.110(7)
"`Dwelling' means any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging;"
RCW 9A.04.110(5)
"`Building', in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building;" (Italics ours.)
"RCW 9A.48.020 Arson in the first degree. (1) A person is guilty of arson in the first degree if he knowingly and maliciously:
"(a) Causes a fire or explosion which is manifestly dangerous to any human life including firemen; or
"(b) Causes a fire or explosion which damages a dwelling; or
"(c) Causes a fire or explosion in any building in which there shall be at the time a human being who is not a participant in the crime.
"(2) Arson in the first degree is a class A felony."
"RCW 9A.48.030 Arson in the second degree. (1) A person is guilty of arson in the second degree if he knowingly and maliciously causes a fire or explosion which damages a building, or any structure or erection appurtenant to or joining any building, or any wharf, dock, machine, engine, automobile, or other motor vehicle, watercraft, aircraft, bridge, or trestle, or hay, grain, crop, or timber, whether cut or standing or any range land, or pasture land, or any fence, or any lumber, shingle, or other timber products, or any property."
2. Whether the trial court abused its discretion in sentencing defendant so four of the five burglary terms should run concurrently but the fifth one should run consecutively to the other four.
[1] With regard to the first issue, any potential for impermissible discretion in the charging of first- or second-degree arson is obviated by the prefatory remarks to RCW 9A.04.110 — "unless a different meaning plainly is required." This proviso, as well as RCW 9A.04.020(2), comport with the controlling case law ( e.g., State ex rel. Campbell v. Case, 182 Wn. 334, 47 P.2d 24 (1935), Olsen v. Delmore, 48 Wn.2d 545, 295 P.2d 324 (1956)), so that whenever a person knowingly and maliciously causes a fire or explosion which damages a dwelling, the first-degree arson statute is applicable and supersedes the second-degree arson statute. See State v. Carroll, 81 Wn.2d 95, 500 P.2d 115 (1970); State v. Collins, 55 Wn.2d 469, 348 P.2d 214 (1960).
"RCW 9A.04.020 Purposes — Principles of construction . . . . (2) The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title."
[2] With regard to the second issue, RCW 9.92.080 invests the trial court with the ultimate authority to determine whether the sentences arising out of a multiple count information shall run concurrently or consecutively. Jansen v. Morris, 87 Wn.2d 258, 261, 551 P.2d 743 (1976). There is nothing in the record which even intimates that the vested discretion was abused. State v. Harris, 10 Wn. App. 509, 518 P.2d 237 (1974).
Although counsel alludes to the defendant's "mental problems" he does not challenge the defendant's competency to either stand trial on the arson counts or plead guilty on the burglary counts. Additionally, there is nothing in the record before us which would permit our raising such issues sua sponte.
Judgment affirmed.
MUNSON, C.J., and McINTURFF, J., concur.