Full Opinion (html_with_citations)

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   IN CLKRK* orPICE
                                                                         This opinion was
                                                                          filed for record
•iraE coum;81XIE OF WASHIKt^
                                                                       S'ftA.on       oL /j    ^
I DATE            2 j fill                                                         -(l-o^—
                                                                       Susan L. Carlson
       CHIEFjusnce
                               1                                      Supreme Court Clerk



   IN THE SUPREME COURT OF THE STATE OF WASHINGTON


  STATE OF WASHINGTON,

                         Petitioner,                                   No. 96599-4
          V.
                                                                         En Banc

  ROBERT LEE PRY, ROBERT LAVALLE
  DAVIS, and ARNOLD MAFNAS CRUZ,
                                                             Filed      MOV M ?ni!l
                        Respondents.




         WIGGINS, J.—At issue in this case is whether the information charging Arnold

 Cruz'' with rendering criminal assistance is constitutionally sufficient—specifically,

 whether the charging document must include additional statutory elements from

 RCW 9A.76.050. We hold that because section .050 provides essential elements for

 rendering criminal assistance and Cruz's information lacked those elements, the

 information is constitutionally deficient. Accordingly, we affirm the Court of Appeals,

 dismiss the charge of rendering criminal assistance without prejudice, and remand

 Cruz's case to the trial court for further proceedings consistent with this opinion.




 ^ Although the caption for this case names multiple appellants, we are concerned only with
 the lower court's ruling for Arnold Cruz. The procedural history of the case is explained below.
state V. Pry(Robert Lee), Davis(Robert Lavalle), & Cruz(Arnold Mafnas), No. 96599-4

                                   BACKGROUND


      On a December day in 2015, two men severely beat and killed 89-year-old
Robert Archie Hood. The two men—Robert Pry and Robert Davis—forced their way

into Hood's home, tied him up, and beat and robbed him. Worried that law

enforcement would discover Hood's body. Pry and Davis contacted Cruz for

assistance. Cruz was not involved in the murder or robbery of Hood's home. He

became involved only after these events occurred.

      Sometime later. Hood's caretaker visited Hood's home and, after noticing that.

Hood was gone and someone had rifled through the house, alerted the police. Hood's
body was eventually discovered stuffed in a blue plastic barrel. The police released
Cruz's name to the press as a person of interest, and Cruz surrendered himself to law

enforcement.


      The State charged Cruz by Information. Originally, Cruz was charged only with

first degree rendering criminal assistance (count 1). Months later, the State filed an

amended information adding a second count: concealing a deceased body (count 2).

For count 1, the amended information specified:

             On or about or between December 17, 2015 and December 30,
      2015, in the County of Kitsap, State of Washington, the above-named
      Defendant, rendered criminal assistance to a person who had committed
      or was being sought for any class A felony; contrary to the Revised Code
       of Washington 9A.76.070(1).

      (Maximum Penalty—Ten (10) years imprisonment and/or a $20,000 fine
      pursuant to RCW 9A.76.070(2)(a) and RCW 9A.20.021(1)(b), plus
       restitution and assessments.)
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz(Arnold Mafnas), No. 96599-4

         Special Allegation—Aggravating Circumstance—Lack of Remorse
             And Furthermore, the Defendant demonstrated or displayed an
      egregious lack of remorse, contrary to ROW 9.94A.535(3)(q).

        Special Allegation—Aggravating Circumstance—Impact on Persons
                                     Other than Victim


              And Furthermore, the offense involved a destructive and
      foreseeable impact on persons other than the victim, contrary to RCW
      9.94A.535(3)(r).

Clerk's Papers(CP)at 578-79. For count 2, the Information stated:

              On or about or between December 17, 2015 and December 30,
      2015, in the County of Kitsap, State of Washington, the above-named
      Defendant, not having been authorized by the Kitsap County Coroner or
      his or her deputies, did remove the body of a deceased person (1) not
      claimed by a relative or friend; and/or (2) who came to his or her death
      by reason of violence or from unnatural causes; and/or (3) where there
      existed reasonable grounds for the belief that such death had been
      caused by unlawful means at the hands of another; and/or (4) to any
      undertaking rooms or elsewhere; and/or (5) and direct, aid or abet such
      taking; and/or(6)and in any way conceal the body of a deceased person
      for the purpose of taking the same to any undertaking rooms or
      elsewhere; contrary to Revised Code of Washington 68.50.050.

      (Maximum PENALTV-Three hundred sixty-four (364) days in jail or $1,000
      fine, or both, pursuant to RCW 68.50.050, plus restitution, assessments
       and court costs.)

CP at 579. Cruz was convicted of both count 1 and count 2; the jury found him not

guilty of any aggravating circumstance.^ Cruz pleaded guilty to drug possession and
bail jumping in another case. The State asked the court to run these earlier offenses



2 The State tried Pry, Davis, and Cruz together. Pry was convicted of felony murder,
kidnapping, robbery, identity theft, possession of stolen property, and witness tampering.
Davis was found guilty of second degree identity theft. The State's case initially included a
fourth defendant, Joshua Rodgers-Jones, but his case was severed. Rodgers-Jones is not
involved in Cruz's current appeal.
state V. Pry (RobertLee), Davis (Robertiavaile), & Cruz (Arnold Mafnas), No. 96599-4

and his convictions related to Hood consecutively, making the sentences exceptional.

The court agreed, sentencing Cruz to a total of 151 months in prison.

       On appeal, Cruz argued for the first time that the State's charging document

was constitutionally deficient for failing to set forth all the essential elements of

rendering criminal assistance. State v. Pry, No. 77930-3-1, slip op. at 3, 43(Wash. Ct.

App.      Nov.   13,   2018) (unpublished),       http://www.courts.wa.qov/opinion/pdf/

779303.PDF.^ The Court of Appeals agreed. Id. In an unpublished opinion, the court

reversed Cruz's conviction and remanded the case for dismissal without prejudice.

Id. at 43. The court declined to address Cruz's argument concerning the 151-month

exceptional sentence. Id. The State sought limited review of the court's decision

reversing Cruz's conviction. We granted the petition. State v. Davis,
192 Wn.2d 1022

(2019).

                                       ANALYSIS


       Cruz argues that the Court of Appeals properly reversed his conviction because

the information omitted essential elements of the crime of rendering criminal

assistance. Cruz contends that RCW 9A.76.050 contains the required essential

elements and their lack of inclusion in his charging document renders it constitutionally

deficient. The State counters that section .050 is merely definitional and need not be

included in the information. Furthermore, the State contends, even if the information



3 Pry, Davis, and Cruz appealed together. Pry, No. 77930-3-1, slip op. at 1. Division One
resolved their consolidated appeals, reversing Cruz's conviction and upholding those of Pry
and Davis. Id. at 3, 22, 34. Pry sought review from this court, and the State moved to
consolidate his appeal with Cruz. We denied Pry's petition and the State's motion. State v.
Davis,
192 Wn.2d 1022
 (2019). Despite the inclusion of Pry and Davis in the caption of this
case, we granted review only of Cruz's appeal.
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz(Arnold Mafnas), No. 96599-4

listed "vague" elements of the crime, Cruz was not prejudiced because the probable
cause statement included with the information gave him adequate notice of the

charges. For the following reasons, we agree with Cruz.

      I.     An information must include all essential elements of the crime to be
             constitutionally sufficient

      Accused persons have the constitutional right to know the charges against

them. U.S. Const, amend. Vl; Wash. Const, art. I, § 22. "Pursuant to this right, '[t]he

accused . . . has a constitutional right to be apprised of the nature and cause of the

accusation against him. . . . This doctrine is elementary and of universal application,

and is founded on the plainest principle of justice.'" State v. Gehrke,
193 Wn.2d 1
, 6,
434 P.3d 522
 (2019) (lead opinion) (first and third alterations in original) (quoting

State V. Ackles,
8 Wash. 462, 464-65
,
36 P. 597
 (1894)). The State gives notice of

charges by information, which "shall be a plain, concise and definite written statement

of the essential facts constituting the offense charged." CrR 2.1(a)(1). An offense is

not properly charged unless the information sets forth every essential statutory and

nonstatutory element of the crime. State v. Kjorsvik,
117 Wn.2d 93, 97
,
812 P.2d 86

(1991); State v. Vangerpen,
125 Wn.2d 782, 787
,
888 P.2d 1177
 (1995).

      An "essential element is one whose specification is necessary to establish the

very illegality of the behavior" charged. State v. Johnson,
119 Wn.2d 143, 147
,
829 P.2d 1078
 (1992)(citing United States v. Cina,
699 F.2d 853, 859
 (7th Cir. 1983)).

The primary purpose of the essential element rule is "to apprise the accused of the

charges against him or her and to allow the defendant to prepare a

defense." Vangerpen,
125 Wn.2d at 787
. While the information need not restate the
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz(Arnold Mafnas), No. 96599-4

precise language of the essential elements of a crime, the information must do more
than merely name the offense and list the elements—it must allege the particular facts
supporting them. State v. Nonog,
169 Wn.2d 220, 226
,
237 P.3d 250
 (2010)(citing
State V. Leach,
113 Wn.2d 679, 688
,
782 P.2d 552
 (1989)); see also State v. Royse,
66 Wn.2d 552, 557
,
403 P.2d 838
(1965). We may look to other counts charged when

assessing whether the information appropriately gave the defendant notice. Nonog,
169 Wn.2d at 227-28
. Failure to allege each element means the information is

insufficient to charge a crime and must be dismissed. Vangerpen,
125 Wn.2d at 788
.

A charging document is not required to define essential elements. State v. Johnson,
180 Wn.2d 295, 302
,
325 P.3d 135
 (2014).

      When, as in this case, a charging document is challenged for the first time on

appeal, we construe it liberally. State v. McCarty,
140 Wn.2d 420, 425
,
998 P.2d 296

(2000). But, "'[i]f the document cannot be construed to give notice of or to contain in

some manner the essential elements of a crime, the most liberal reading cannot cure

it.'"
Id. at 425
 (alteration in original)(internal quotation marks omitted)(quoting State

V. Moavenzadeh,
135 Wn.2d 359, 363
,
956 P.2d 1097
 (1998)).

       Reviewing courts use a two-pronged test to resolve challenges to the

sufficiency of evidence: (1) do the necessary facts appear in any form, or by fair

construction can they be found, on the face of the charging document and, if so,(2)

can the defendant show that he or she was nonetheless actually prejudiced by the

inartful language that caused a lack of notice? Kjorsvik,
117 Wn.2d at 105-06
. Under

the first prong of Kjorsvik, courts may examine other charged counts when assessing

whether an information gave a defendant appropriate notice. Nonog, 169 Wn.2d at
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz(Arnold Mafnas), No. 96599-4

226. We do not look past the face of the document—and therefore do not examine
items such as statements of probable cause—until the second prong In Kjorsvik.

State V. Goodman,
150 Wn.2d 774, 788
,
83 P.3d 410
 (2004); see also State v.

Williams,
162 Wn.2d 177, 186
,
170 P.3d 30
(2007)(turning to a statement of probable

cause that accompanied the information only after reaching the second prong of

Kjorsvik).

      If the necessary elements are not found or fairly implied, we presume prejudice

and reverse without reaching the second prong and the question of prejudice. State

V. Zillyette,
178 Wn.2d 153, 163
,
307 P.3d 712
 (2013); City of Auburn v. Brooke,
119 Wn.2d 623, 636
,
836 P.2d 212
 (1992)(courts do not reach prejudice unless there Is

some language in the document, however inartful, relating to the necessary

elements); see also Wayne R. LaFave et al., 5 Criminal Procedure § 19.3(b) (4th

ed. 2015) ("[l]n most jurisdictions, even where the lack of an element in a pleading

was not challenged before the trial court. It can be raised on appeal following a trial

conviction, and if the pleading completely fails in this regard, the conviction will be

automatically reversed.").

      II.    The information charging Cruz with rendering criminal assistance lacked
             essential elements of the crime and therefore was constitutionally
             insufficient

       Here, Cruz was charged with rendering criminal assistance in the first degree

pursuant to RCW 9A.76.070. Count 1 reads:

             On or about or between December 17, 2015 and December 30,
      2015, in the County of Kitsap, State of Washington, the above-named
       Defendant, rendered criminal assistance to a person who had committed
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz (Arnold Mafnas), No. 96599-4

        or was being sought for any class A felony; contrary to the Revised Code
        of Washington 9A.76.070(1).

CP at 578. This closely tracks the language of RCW 9A.76.08.070, which reads, In

part:

        A person Is guilty of rendering criminal assistance In the first degree If he
        or she renders criminal assistance to a person who has committed or Is
        being sought for murder In the first degree or any class A felony . . . .

RCW 9A.76.070(1). In other words, Cruz was charged with "rendering criminal

assistance," and the Information told him this meant that he was charged with

"rendering criminal assistance."

        Cruz contends his Information Is deficient because It does not contain the

essential elements set out In RCW 9A.76.050. Section .050 explains:


        As used In RCW 9A.76.070, 9A.76.080, and 9A.76.090, a person
        "renders criminal assistance" If, with Intent to prevent, hinder, or delay
        the apprehension or prosecution of another person who he or she knows
        has committed a crime or juvenile offense or Is being sought by law
        enforcement officials for the commission of a crime or juvenile offense or
        has escaped from a detention facility, he or she:
              (1) Harbors or conceals such person; or
              (2) Warns such person of Impending discovery or apprehension;
        or

               (3) Provides such person with money, transportation, disguise, or
        other means of avoiding discovery or apprehension; or
               (4) Prevents or obstructs, by use of force, deception, or threat,
        anyone from performing an act that might aid In the discovery or
        apprehension of such person; or
               (5) Conceals, alters, or destroys any physical evidence that might
        aid In the discovery or apprehension of such person; or
              (6) Provides such person with a weapon.

        We must determine whether section .050 provides essential elements or merely

defines the offense of rendering criminal assistance. Fortunately, we have already
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz(Arnold Mafnas), No. 96599-4


opined on this issue. In State v. Budik, we reviewed the sufficiency of the evidence

supporting a conviction for rendering criminal assistance.
173 Wn.2d 727, 736-37
,
272 P.3d 816
 (2012). We identified the essential elements of the offense in light of

section .050, stating that "a person renders criminal assistance if he or she(1) knows

that another person (a)'has committed a crime or juvenile offense' or (b) 'is being

sought by law enforcement officials for the commission of a crime or juvenile offense'

or (c)'has escaped from a detention facility' and (2) intends 'to prevent, hinder, or

delay the apprehension or prosecution' of that other person and (3) undertakes one

of the six specified actions [listed in RCW 9A.76.050(1 )-(6)]."
Id. at 734
(quoting RCW

9A.76.050). We held that the evidence presented was not sufficient to support Budik's

conviction based on the "essential element" in RCW 9A.76.050(4).
Id. at 734-35, 738
.

Budik makes clear that RCW 9A.76.050 provides essential elements of the crime of

rendering criminal assistance.
Id. at 736-37
.

      Even if Budik could be distinguished, section .050 itself provides the essential

elements of rendering criminal assistance. As noted above,'"[a]n "essential element

is one whose specification is necessary to establish the very illegality of the behavior"

charged.'" Ziiiyette,
178 Wn.2d at 158
 (quoting State v. Ward,
148 Wn.2d 803, 811
,
64 P.3d 640
(2003)(quoting Johnson, 119 Wn.2d at 147)). The aspects of rendering

criminal assistance described in RCW 9A.76.050—and interpreted by Budik as

essential elements—are essential elements under this rule. Without RCW 9A.76.050,

we are left only with section .070, and this provision does not state what constitutes

rendering criminal assistance. Section .070 states only that rendering criminal

assistance occurs if one renders criminal assistance. This does not ""'establish the
state V. Pry (Robert Lee), Davis (Robert Lavalle), & Cruz (Arnold Mafnas), No. 96599-4

very illegality of the behavior" charged.'"/d.(quoting Ward, 148Wn.2d at 811 (quoting

Johnson,
119 Wn.2d at 147
)).

      The State contends that section .050 is merely definitional and Budik is

inapposite.   Because a charging document is not required to define essential

elements, Johnson,
180 Wn.2d at 302
, the State argues that section .050's definition

of rendering criminal assistance is unnecessary to include in Cruz's information. But

if section .050 is merely definitional, the question then becomes what does section

.050 define? The simple answer might be that it defines rendering criminal assistance.

However, no single act or mental state constitutes that offense. Section .050 requires

intent, knowledge, and action: the intent io prevent, hinder, or delay the apprehension

or prosecution of someone that he or she knows has committed a crime or is sought

by authorities for commission of a crime, and action on behalf of that person by

(among other things) harboring, concealing, or warning them; providing them with aid

to avoid discovery; and concealing or destroying evidence. See ROW 9A.76.050.

Section .050 does substantially more than provide a definition; it informs a suspected

person of the very crime the State alleges he or she committed.

       Furthermore, section .050 is necessary to give content to the crime of rendering

criminal assistance. As Cruz correctly notes, not just any act of assistance is illegal—

it must be one of six acts identified in section .050. Budik,
173 Wn.2d at 734-35
. For

example, a person who simply cooks a meal or provides emotional support for a

person he or she knows has committed a crime is not rendering criminal assistance.

Suppl. Br. of Resp't at 17; ROW 9A.76.050. As section .050 makes clear, section .070

does /7of criminalize that behavior. See Zillyette, 178 V\/n.2d at 160(alleging a violation

                                            10
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz (Arnold Mafnas), No. 96599-4

of a statute that includes both criminal and noncriminal behavior is overinclusive and

fails to satisfy the essential elements rule). In this example, section .070 identifies

neither the actions nor the mental state required to render criminal assistance. Those

elements are found in RCW 9A.76.050. Thus, the definition of rendering criminal

assistance found in section .050 necessarily provides essential elements of the crime.

      The State also argues that Budik is inapposite for two reasons:(1) Budik treats

section .050 as definitional and (2) the Budik court was not asked whether section

.050 constitutes essential elements to be included in a charging document. The

State's arguments are unconvincing.

      First, although Budik uses the title of section .050, which uses the word

"definition" ("Rendering criminal assistance—Definition of term"),
173 Wn.2d at 733
-

34, Budik characterizes section .050 not as merely definitional but as providing

essential elements that the State must prove. E.g.,
id. at 738
 (describing RCW

9A.76.050(4) as "one essential element" of the crime of rendering criminal

assistance). Second, the State points to our decision in State v. Porter as evidence

that this court distinguishes between essential elements for the sufficiency of the

evidence versus sufficiency of an information.
186 Wn.2d 85, 92-93
,
375 P.3d 664

(2016). The State misconstrues Porter. In that case, the defendant argued that

charging documents must mirror pattern jury instructions.
Id.
 We disagreed, noting

charging documents and jury instructions serve different purposes.
Id.
 Here, Cruz

does not argue that an information must align with jury instructions; he contends only

that Budik recognized section .050 as providing the essential elements of rendering




                                           11
state V. Pry (Robert Lee), Davis (Robert Lavalle), & Cruz (Arnold Mafnas), No. 96599-4

criminal assistance. The State offers no principled reason why the essential elements

set out in Budik are not essential elements to be included in a charging document.

       Despite the State's protests, the information here does not include any of the

six acts specified in section .050 and identified in Budik as essential elements.
173 Wn.2d at 734, 738
. Nor does the charging document include any facts that describe

what, exactly, Cruz's crime entailed. Nonog,
169 Wn.2d at 226
. The information

"[m]erely cite[s] to the proper statute and nam[es] the offense": the "name of the

offense" does not "apprise[]the defendant of all of the essential elements of the crime."

Vangerpen,
125 Wn.2d at 787
. It is therefore constitutionally insufficient.
Id.

       Next, the State contends that reversing Cruz's conviction conflicts with our

decisions in Johnson,
180 Wn.2d at 301-02
, and Porter,
186 Wn.2d at 92-93
. The

State misreads these cases.

       In Johnson, the defendant was charged by information with unlawful

imprisonment.
180 Wn.2d at 301
. The charging document stated, in relevant part:

      ". . . J.C. JOHNSON [is accused] of the crime of Unlawful
      Imprisonment - Domestic Violence, based on a series of acts
      connected together with another crime charged herein, committed as
      follows:


      "That the defendant J.C. JOHNSON in King County, Washington, during
       a period of time intervening between May 4, 2009 through May 6, 2009,
       did knowingly restrain [J.C.'s wife], a human being;

      "Contrary to RCW 9A.40.040, and against the peace and dignity of the
       State of Washington."
Id.




                                            12
state V. Pry (RobertLee), Davis (RobertLavaile), & Cruz (Arnold Mafnas), No. 96599-4

       Johnson alleged that the definition of "restrain" set forth in former

RCW 9A.40.010(1)'' constituted an essential element of unlawful imprisonment, and

the failure to include this definition rendered the information deficient.
Id. at 301-02
.

We rejected this argument and held that the definition of restrain defines the term and

limits the scope of the essential elements.
Id. at 302
. Definitions of elements are not

required in a charging document.
Id.

       In Porter, a defendant was charged with unlawful possession of a stolen motor

vehicle under RCW 9A.56.068.
186 Wn.2d at 88
. The charging document stated:

       "[tjhat CLIFFORD MELVIN PORTER, JR., in the State of Washington,
       on or about the 27th day of August, 2011, did unlawfully and feloniously
       knowingly possess a stolen motor vehicle, knowing that it had been
       stolen, contrary to RCW 9A.56.068 and 9A.56.140, and against the
       peace and dignity of the State of Washington."
Id.
 (alteration in original). Porter argued that the information was insufficient because

it did not include the definition of "possess."
Id. at 90
. Relying on Johnson, we held

that the definition of "possess" merely defined and limited the scope of the essential

elements of unlawful possession of a motor vehicle.
Id. at 91
.

       The State contends that Cruz's case Is similar to Johnson and Porter. But the

State overlooks the critical difference between the crime charged in Cruz's information

and the contested terms in Johnson and Porter. This case does not concern the

definition of terms like "restrain" and "possess," which simply clarified crimes that were

fully and properly stated in a charging document. We are instead concerned with the



 "'Restrain' is defined as 'to restrict a person's movements without consent and without legal
authority   in   a    manner     which    interferes    substantially   with    his   liberty.'
Former RCW 9A.40.010(1)(1975)." Johnson,
180 Wn.2d at 301
.


                                             13
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz (Arnold Mafnas), No. 96599-4

proper statement of the crime itself. RCW 9A.76.070 states only that one is guilty of
rendering criminal assistance if he or she renders criminal assistance to a criminal. In

effect, one commits a crime by committing a crime. Section .070 does not inform a

defendant in plain and simple terms what rendering criminal assistance means,

CrR 2.1(a)(1), nor does it list any elements specifying the '"very illegality of the

behavior'" charged. Zillyette,
178 Wn.2d at 158
 (internal quotation marks omitted)

(quoting Ward, 148Wn.2d at 811).

      Johnson and Porter are also distinguishable because the charging documents

at issue in those cases included the intent elements of the charged crimes.

See Johnson,
180 Wn.2d at 301
 ('"knowingly restrain'") and Porter,
186 Wn.2d at 88

("'feloniously knowingly possess . . . knowing that it had been stolen'"). These cases

concerned only whether the terms "possession" and "restraint" were essential

elements and included intent, whereas here, the challenged information wholly

omitted reference to the mental state required to commit the crime of rendering

criminal assistance. RCW 9A.76.070.®

       Under our analysis in Johnson and Porter, the information charging Cruz with

rendering criminal assistance does not make the grade under the Sixth Amendment

and article I, section 22. The State was required to include the essential elements as

set out in section .050 and recognized in Budik. Unlike the definitions of "restrain" and

"possess," section .050 does not simply define or limit the scope of essential elements


5 The definitions for "restrain" and "possess" are also unlike that of "rendering criminal
assistance" because these terms can be generally understood by the ordinary person. Further
elaboration would only further define these commonsense terms, and a charging document
need not define essential elements. Johnson,
180 Wn.2d at 302
.


                                            14
state V. Pry(Robert Lee), Davis (Robert Lavaile), & Cruz (Arnold Mafnas), No. 96599-4

set forth in section .070. Section .050 provides those elements. Because they were

not present in the charging document, it was constitutionally deficient.

      This deficiency cannot be cured by locking to count 2 of the information against

Cruz, charging him with "removal or concealment of a deceased body," a gross

misdemeanor under ROW 68.50.050. CP at 579. From count 2, it is possible to

conclude that concealing a dead body was an act that amounted to rendering criminal

assistance. But this is far from providing sufficient notice for the charge of rendering

criminal assistance. Nothing in count 2 expressly links it to the crime of rendering

criminal assistance or provides any description of the substance of rendering criminal

assistance. Even if count 2 could be read as qualifying as one of the six acts listed in

section .050(such as concealing physical evidence under RCW 9A.76.050(5)), count

2 does not contain the required mens rea elements of rendering criminal assistance:

intent io hinder or delay apprehension of someone he or she knows has committed a

crime. Perhaps count 2 could be viewed as indicating that a suspect concealed a

body with the intent to prevent its discovery, but this falls far short of the specific

mental states RCW 9A.76.050 requires.

      In contrast, sometimes a count or counts in an information may inform the

defendant of elements missing from an otherwise deficient count of the same

information. Such was the case in Nonog, in which the information charging Nonog

with the crime of interfering with domestic violence reporting was constitutionally

sufficient. Nonog,
169 Wn.2d at 223
. Nonog argued that his charging document was

insufficient because it did not define "domestic violence."
Id. at 228
. We reasoned that




                                           15
state V. Pry (Robert Lee), Davis (Robert Lavalle), & Cruz (Arnold Mafnas), No. 96599-4

the information was sufficient because other counts in that information, which the

challenged count expressly referenced, did define domestic violence.
Id. at 229
. Here,

nothing in count 2 indicates that it defines, or is associated with, rendering criminal

assistance. Moreover, count 1 charges rendering criminal assistance but does not

reference count 2's concealing a body. Thus, count 2 cannot save count 1 from

constitutional deficiency.

        The dissent disagrees on a different basis entirely. The dissent asserts that

because the certificate of probable cause was purportedly attached® to the

information, it was part of the information, and therefore we may properly turn to it

under the first prong of the Kjorsvik test to determine whether the information gave

constitutionally sufficient notice. Dissent at 2-3. With the certificate's assistance, the

dissent concludes that the information was sufficient. Id. at 8-9.


       The dissent is incorrect. Under the first prong           Kjorsvik, the inadequacy of the

information cannot be cured by referring to the certificate of probable cause. Under

Kjorsvik, we do not treat certificates of probable cause as part of the information, even

when they are attached to or accompany the information. Our case law on this is clear.




® The dissent produces no proof that the certificate of probable cause was actually attached to
the information. It asserts that the "fact is not disputed" that the certificate of probable cause was
attached to the charging document—but the dissent's only "facts" are assertions the State made
in its briefing before the Court of Appeals, before this court, and at oral argument. Dissent at 6-7.
But assertions from appellate briefing and argument do not create facts. In any event, attached
or unattached, the certificate of probable cause is irrelevant to the first prong of the Kjorsvik test


                                                 16
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz (Arnold Mafnas), No. 96599-4

In Williams, the petitioner challengecl a charging document as inadequate for the first
time on appeal.
162 Wn.2d at 185
. In conducting the Kjorsvik analysis, we faced a
situation identical to the one the dissent claims is before us today: "the information

was accompanied by a statement of probable cause."
Id. at 186
. But we turned to this

accompanying statement of probable cause only after reaching the second prong of

the Kjorsvik analysis, noting that it is the second prong that "allows the court to look

outside the information."
Id.
 In short, the Williams court treated the information as only

the text of the information itself, and the statement of probable cause—although

accompanying the information—was not part of the information.
Id.
 Rather, the

statement of probable cause was considered part of the '"other circumstances of the

charging process'" that Kjorsvik allows us to look to in the second prong of its analysis.
Id.
 (quoting Kjorsvik,
117 Wn.2d at 106
). Although the dissent relies on Leach,
113 Wn.2d 679
, to justify its turn to the certificate of probable cause under the first prong

of Kjorsvik, Leach predates Kjorsvik—as the dissent admits. Dissent at 3. Williams,

decided in 2007, nearly two decades after Leach, expressly conducted a Kjorsvik

analysis and clearly provides the persuasive precedent on this issue.

      Accordingly, we shall not consider the certificate of probable cause when the

text of the information itself is found constitutionally deficient under KjorsviKs first

prong, whether the certificate accompanies the information or not.

      The dissent protests, arguing that its analysis represents the "[cjommon sense"

method. Dissent at 5. But a commonsense reading of our own precedent points to

precisely the opposite conclusion as Williams shows. Further, when Nonog—which

the dissent cites for its turn to common sense—talks about "read[ing] the information


                                           17
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz(Arnold Mafnas), No. 96599-4

as a whole, according to common sense," it was discussing reading individual counts

in the information in concert and not limiting our consideration in a Kjorsvik analysis

to the challenged count alone.
169 Wn.2d at 227-28
. When our long-established case

law discusses analyzing the sufficiency of the information by looking "solely to the face

of the charging instrument," a commonsense approach leads us to look at on/y what

is actually Included in the text of the information, not ancillary documents like a

certificate of probable cause. Goodman,
150 Wn.2d at 788
.

      From the dissent's flawed methodology stems its flawed conclusion. The

dissent's only way to save the information from being unconstitutional is to turn to the

certificate of probable cause; without that certificate, the dissent's argument cannot

succeed. With only the information itself before us, it is clear that Cruz was not given

constitutionally sufficient notice of the crime of rendering criminal assistance.

      In sum, the charging document failed to put Cruz on notice that he committed

the offense of rendering criminal assistance.         Cruz's objection to his charging

document is not that it could be more elaborate; his objection is simply that the

information failed to adequately inform him of the crime for which he was charged. We

agree. This information was constitutionally insufficient. Accordingly, the Court of

Appeals did not err in reversing Cruz's conviction.




                                           18
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz (Arnold Mafnas), No. 96599-4

                                    CONCLUSION


      ROW 9A.76.050 sets forth essential elements for rendering criminal assistance.

The State was therefore required to include the elements set out in section .050 in the

information charging Cruz with rendering criminal assistance.           Because Cruz's

information entirely omitted the elements found in section .050, we hold it was

constitutionally insufficient. Accordingly, the Court of Appeals properly reversed

Cruz's conviction. We affirm the Court of Appeals and remand Cruz's case to the trial

court for further proceedings consistent with this opinion.




                                           19
state V. Pry(Robert Lee), Davis (Robert Lavalle), & Cruz (Arnold Mafnas), No. 96599-4




       WE CONCUR.




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                                           20
State V. Pry, Davis & Cruz, No. 96599-4
(Yu, J., dissenting)




                                          No. 96599-4


       YU, J. (dissenting) — The legal principles at issue are well settled. "In

criminal prosecutions the accused shall have the right... to demand the nature and

cause of the accusation against him." WASH. CONST, art. I, § 22; see also U.S.

Const, amend. VI. Therefore,"[a]ll essential elements of a crime, statutory or

otherwise, must be included in a charging document in order to afford notice to an

accused ofthe nature and cause of the accusation against him." State v. Kjorsvik,
117 Wn.2d 93, 97
,
812 P.2d 86
 (1991). However,"[cjharging documents which

are not challenged until after the verdict will be more liberally construed in favor

of validity than those challenged before or during trial."
Id. at 102
.

       My disagreement with the majority is not based on these legal principles but

on a fundamental question that precedes them: What is the "charging document"?
State V. Pry, Davis & Cruz, No. 96599-4
(Yu, J., dissenting)

       The majority's answer is that in every case the charging document is strictly

limited to the information and therefore can never include an attached certificate of

probable cause. Applying this formalistic approach, the majority holds that the

charge of rendering criminal assistance (count 1) was constitutionally insufficient,

so petitioner Arnold Cruz's conviction must be reversed. The majority's approach

is not compelled by our precedent and ignores the practical and legal

considerations at issue in postverdict challenges to the sufficiency of charging

documents. I would take a more flexible approach, and I would hold that the

charging document in this case was constitutionally sufficient to survive Cruz's

postverdict challenge. I therefore respectfully dissent.

                                          ANALYSIS


A.     The charging document in this case includes both the information and the
       attached certificate of probable cause

       Where, as here, the constitutional sufficiency of a charging document is

challenged for the first time after the verdict, we apply the two-step Kjorsvik 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) can the defendant show that he or

she was nonetheless actually prejudiced by the inartful language which caused a

lack of notice?"
Id. at 105-06
. The first step of the Kjorsvik IqsX "looks to the face

of the charging document itself."
Id. at 106
. Proper application of this first step
State V. Pry, Davis & Cruz, No. 96599-4
(Yu, J., dissenting)

therefore requires us to determine what "the charging document itself is. In this

case, I would hold that because the information and certificate of probable cause

were physically attached to each other and were treated as a single document, they

are both included within the charging document itself. Therefore, both may be

considered in the first step of the Kjorsvik test.

        Our precedent has already endorsed the approach I would take. For

instance, in State v. Leach, we explicitly considered both the misdemeanor

complaint and a copy of the police report that was attached to the complaint and

incorporated by reference with the notation '"(see case).'"
113 Wn.2d 679, 684
,
782 P.2d 552
(1989). We concluded that the charge was insufficient, but not

because we refused to consider the police report. To the contrary, we held the

charge was insufficient because "the photocopy of the police report received by

Mr. Leach and incorporated by reference into the complaint omitted the year of

birth of one of the alleged victims," an essential element raising the offense from a

misdemeanor to a gross misdemeanor.
Id.
 However,"[i]f that crucial information

had been provided him, he would have been able to determine that he was charged

with a gross misdemeanor" and the charge would have been constitutionally

sufficient.
Id.
 ,- see also
id. at 690
.

       Leach predates Kjorsvik, but it is still good law for the proposition that the

charging document may include a police report or certificate of probable cause that
State V. Pry, Davis & Cruz, No. 96599-4
(Yu, J., dissenting)

is attached to the complaint or information. Kjorsvik did not abrograte Leach] it

reached an issue that Leach did not, namely "whether a different standard of

review should be applied when, as here, the accused first raises the issue on

appeal." Kjorsvik,
117 Wn.2d at 103
; see Leach,
113 Wn.2d at 700-01

(Brachtenbach, J., concumng). Kjorsvik answered yes,"[cjharging documents

which are not challenged until after the verdict will be more liberally construed in

favor of validity than those challenged before or during trial."
117 Wn.2d at 102
.

       Kjorsvik did not disavow Leach's approach to defining the charging

document, nor did Williams or Goodman. State v. Williams,
162 Wn.2d 177
,
170 P.3d 30
(2007); State v. Goodman,
150 Wn.2d 774
,
83 P.3d 410
(2004). In each

case, the court merely held that the language of the information, by itself, was

sufficient to satisfy the first step of the Kjorsvik test. Williams,
162 Wn.2d at 186
;

Goodman,
150 Wn.2d at 788-89
; Kjorsvik,
117 Wn.2d at 110-11
. None ofthese

cases reexamined (much less explicitly rejected) Leach's recognition that a

charging document sometimes includes an attached police report or statement of

probable cause.

       Nevertheless, the majority contends these cases show that Kjorsvik's explicit

adoption of a more liberal construction standard for charging documents implicitly

compels a stricter definition of the charging document itself. See majority at 16-

18. The counterintuitive result is that in a case like this one, a charging document
State V. Pry, Davis & Cruz, No. 96599-4
(Yu, J., dissenting)

that would have been constitutionally sufficient pursuant to Leach is

constitutionally deficient pursuant to Kjorsvik. I cannot agree with this reading of

our precedent.

       Leach'^ approach to defining the charging document is also entirely

consistent with the logic of the Kjorsvik test. The purpose of Kjorsvik's more

liberal construction standard is to discourage '"sandbagging,"' which is "a

potential defense practice wherein the defendant recognizes a defect in the

charging document but forgoes raising it before trial when a successful objection

would usually result only in an amendment of the pleading." Kjorsvik,
117 Wn.2d at 103
. In keeping with this purpose, the only reason that the first step of the

Kjorsvik test is limited to the charging document is to differentiate between

challenges to the sufficiency of the charging document and challenges to the

sufficiency of the State's evidence. See United States v. Hall,
20 F.3d 1084, 1087

(10th Cir. 1994). This limitation is not intended to artificially narrow our inquiry

based on "formal defects." Hagner v. United States,
285 U.S. 427, 431
,
52 S. Ct. 417
,
76 L. Ed. 861
 (1932).

       In postverdict challenges, we must read the charging document "as a whole,

according to common sense." State v. Nonog,
169 Wn.2d 220, 227
,
237 P.3d 250

(2010). Common sense indicates that when Cruz was provided with a three-page

information attached to a thi"ee-page certificate of probable cause, he was put on
State V. Pry, Davis & Cruz, No. 96599-4
(Yu, J., dissenting)

notice of the contents of all six pages. If he felt that the certificate of probable

cause was surplusage, then he could have moved to strike it. See CrR 2.1(b). He

also had the right to challenge the sufficiency of the charges before or during trial.

Cruz was clearly aware of this right because he brought a midtrial motion to

dismiss the charge of concealment of a deceased body (count 2)for failing to

allege the essential elements, which the trial court denied. Clerk's Papers(CP) at

968-70; 27 Verbatim Report ofProceedings (June 20, 2016) at 4728. However, he

did not challenge the sufficiency of the rendering criminal assistance charge (count

1) until after he was convicted. Although we cannot know for certain, this history

strongly suggests intentional sandbagging. The majority's approach today

encourages such tactics, contrary to the purpose of the Kjorsvik test.

       The majority further suggests that we cannot consider the certificate of

probable cause in the first step of the Kjorsvik test because there is "no proof that

the certificate of probable cause was actually attached to the information."

Majority at 16 n.6. However, that fact is not disputed. If it were, I would request

further briefing from the parties or remand to the superior court to take additional

evidence pursuant to RAP 9.11, but such additional steps are unnecessary here.

       The superior court's docket shows that the information and certificate of

probable cause were filed on the same day under the same subnumber as a single

document. The State asserted in its briefing to both the Court of Appeals and this
State V. Pry, Davis & Cruz, No. 96599-4
(Yu, J., dissenting)

court that the information "was accompanied by a statement of probable cause."

Br. of Resp't at 84(Wash. Ct. App. No. 49284-9-II (2018)); Pet. for Review at 11.

Cruz never challenged those assertions. And at oral argument before this court, the

State confirmed that it is the ordinary practice of the Kitsap County Prosecutor's

Office to physically attach the certificate of probable cause to the information and

provide them both to the defendant as a single document at arraignment. Wash.

Supreme Court oral argument, State v. Pry, No. 96599-4 (June 25, 2019), at 7 min.,

5 sec., video recording by TVW, Washington State's Public Affairs Network,

http://www.tvw.org. Cruz has not challenged that assertion either, nor has he

contended that the State deviated from its ordinary practice in this case.

       There is thus no dispute that the certificate of probable cause was attached to

the information and they were provided to Cruz together as a single charging

document. I would therefore hold that for purposes of the first step of the Kjorsvik

test, the charging document here includes both the information and the attached

certificate of probable cause.'




       'The record does not indicate whether the certificate of probable cause was also attached
to the amended information, but that does not change the analysis because Cruz had already been
provided with the certificate of probable cause as an attachment to the original information.
State V. Pry, Davis & Cruz, No. 96599-4
(Yu, J., dissenting)

B.     Assuming that RCW 9A.76.050 does set forth essential elements of
       rendering criminal assistance, the charging document in this case sufficiently
       alleges them

       When both the information and the certificate of probable cause are

considered, the charging document in this case easily passes the first step ofthe

KjorsvikiQsX. Cruz contends that RCW 9A.76.050 sets forth essential elements of

the crime of rendering criminal assistance and that three ofthose elements are

missing from the charging document in this case:

       [That the defendant]"(1) knows that another person (a)'has
       committed a crime or juvenile offense' or(b)'is being sought by law
       enforcement officials for the commission of a crime or juvenile
       offense' or(c)'has escaped from a detention facility' and (2)intends
       'to prevent, hinder, or delay the apprehension or prosecution' ofthat
       other person and (3)undertakes one of the six specified actions."

Answer to Pet. for Review at 7(emphasis omitted)(quoting State v. Budik,
173 Wn.2d 727, 734
,
272 P.3d 816
(2012)(quoting RCW 9A.76.050)). I would

assume without deciding that these are essential elements because the facts

supporting each one are alleged in the charging document:

       Cruz then told [his fiiend] about how he had disposed of the body of
       the "old man" from Bremerton that had been in the news. Cruz stated
       he had killed people before and he did not want the young men
       responsible to go to prison. Cruz stated he agreed to dispose of the
       body so there would be no evidence of the murder.

CP at 5.
State V. Pry, Davis & Cruz, No. 96599-4
(Yu, J., dissenting)

        This language, liberally construed, alleges every element that Cruz contends

is missing:(1) Cruz knew that other people (the young men) had committed a

crime (killing the "old man");(2) Cruz intended to prevent the young men's

apprehension and prosecution (because he did not want them to go to prison); and

(3) Cruz undertook the specific action of"[c]onceal[ing], alter[ing], or destroy[ing]

any physical evidence that might aid in [their] discovery or apprehension"(by

disposing of the victim's body). RCW 9A.76.050(5). Therefore, assuming

without deciding that these are all essential elements,"the necessaiy facts" for each

one appear "in the charging document." Kjorsvik,
117 Wn.2d at 105
.

                                     CONCLUSION


       The majority today applies an unduly strict standard for evaluating a

charging document that is challenged for the first time after the verdict,

encouraging the very type of sandbagging the Kjorsvik test is intended to prevent.

I would hold that the charging document in this case satisfies the first step of the

Kjorsvik test and, because Cruz does not argue he was "nonetheless actually

prejudiced by the inartful language," his conviction should be affirmed.
Id. at 106
.

I therefore respectfully dissent.
State V. Pry, Davis & Cruz, No. 96599-4
(Yu, J., dissenting)




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