STATE v. CHAVEZ (2006)

PART PUBLISHED OPINION

 ¶ 1 Azel Luke Chavez appeals his convictions for robbery, assault, unlawful possession of a firearm, taking a motor vehicle without permission, and attempted murder, arguing that he was constitutionally entitled to a jury trial, that his assault conviction violates separation of powers, that the court admitted his custodial confessions in violation of Miranda,¹ and that the court admitted improper hearsay evidence.   We affirm, holding that Chavez had no right to a jury trial in juvenile proceedings and that the legislature did not violate the separation of powers doctrine by allowing the judiciary to define statutory terms with the common law.   We also affirm the trial court's ruling that Chavez waived his Miranda rights;  and although the trial court may have admitted hearsay evidence without a sufficient foundation, the error was harmless.

FACTS

¶ 2 During spring training for the Sequim High School football team, three coaches disciplined Chavez on several occasions. Because of these incidents, Chavez quit the  team.   He remained angry with the coaches into the Fall football season.   In October, he told his friend Amanda that for several months he had been planning to kill the three coaches.   He explained that he would take his mother's van or his brother's truck and use his father's 12-gauge shotgun.

¶ 3 A few days later, Chavez told another friend, James Gambell, that he wanted to kill three people.   Shortly thereafter, he donned black face paint and camouflage clothing and retrieved the shotgun, removing five shells and then reloading it with three more shells.   He confronted his stepmother, Joan, pointing the gun at her and demanding the keys to the family gun safe.   Joan asked, “Why are you mad at these people?” and Chavez answered, “It's the only way.”   Supp. Clerk's Papers (SCP) at 24.   When Joan refused to give up the safe keys, and Gambell blocked his access to the safe, Chavez took the family van and drove away.

¶ 4 Gambell and Chavez's brother, Jason, followed in another vehicle.   Chavez stopped at Amanda's house and told her, “I did it,” or “I'm doing it.”   Clerk's Papers (CP) at 25.   Chavez continued driving and when he lost Gambell and Jason, he returned to Sequim High School.   The football team had already left for a game in Tacoma.   Although Chavez later testified that he did not believe the team would be at the high school, he had told a police officer that he went to the high school to say goodbye to a friend who was a member of the team.

¶ 5 In the meantime, Joan called 911 and reported Chavez's behavior.   Chavez fled Sequim and led police officers on a high speed chase from Clallam County, through Jefferson County, and into Kitsap County, where the pursuit ended when he collided head-on with a police car on the Hood Canal Bridge.   Officers disarmed him and placed him under arrest.   While in custody, Chavez gave statements to three different law enforcement officers.   Before each statement, the officer advised him of his Miranda rights.

 ¶ 6 The State charged Chavez with first degree robbery, second degree assault, second degree unlawful possession of a firearm, second degree taking a motor vehicle without permission, and three counts of attempted murder in the first degree.   He was tried in juvenile proceedings without a jury.   Before trial, the State moved to disqualify one of Chavez's attorneys due to a conflict of interest.   During the discussions, the trial judge mentioned that Chavez, at 14, would not be able to execute a valid waiver of the conflict.   The trial court also held a CrR 3.5 hearing and ruled that Chavez had voluntarily, knowingly, and intelligently waived his Miranda rights.

¶ 7 During Joan's testimony, the State sought to play the recording of her 911 call, under the recorded recollection exception to the hearsay rule.   While laying the foundation for this admission, the following exchange occurred between the prosecutor and the witness:

Q Do you remember telling the 911 operator what Azel said?

A I remember-I don't remember telling him what he said․

Q Is it fair to say, you just said you don't remember what you told the 911 operator in terms of what Azel said?

A Yeah, I remember what I said.

Q And, is it also fair to say that today you don't have a complete recollection of every word that Azel used that day?

A No.

Q And, is it true that when you were telling the 911 operator what had happened, you were trying to give her a full and complete picture what had happened?

A Yeah, I was trying to let them know.

Report of Proceedings (RP) (March 7, 2005) at 64.²  Over defense counsel's objection, the recording was admitted as a recorded recollection.

 ¶ 8 The trial judge found Chavez guilty on all seven counts. At sentencing, defense counsel argued for a reduced disposition, but the trial judge found that none of the statutory mitigating factors existed.   The judge imposed the standard range disposition of 309 to 387 weeks, plus a 12-month firearm enhancement.   In deciding on the standard disposition, the judge relied on the opinions of two psychological professionals as to what would be most conducive to Chavez's rehabilitation.

ANALYSIS

I. Right to Jury Trial in Juvenile Proceedings

 ¶ 9 Washington's Juvenile Justice Act requires cases in juvenile court to be tried without a jury.   See RCW 13.04.021(2). Under the Washington Constitution, the right of jury trial “shall remain inviolate.”   Wash. Const. art.   I § 21.   In criminal prosecutions, the accused has the right to “a speedy public trial by an impartial jury.”   Wash. Const. art.   I § 22.   The U.S. Constitution guarantees a criminal defendant, “the right to a speedy and public trial, by an impartial jury.”   U.S. Const. amend.   VI. The courts have held that the Juvenile Justice Act does not violate these constitutional provisions because the juvenile justice system is rehabilitative rather than retributive.   See State v. Schaaf, 109 Wash.2d 1, 16, 743 P.2d 240 (1987);  McKeiver v. Pennsylvania, 403 U.S. 528, 547, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

¶ 10 Nonetheless, Chavez argues that his right to a jury trial was violated.   First, he asserts that two recent U.S. Supreme Court opinions support the right to a jury trial in juvenile proceedings under the U.S. Constitution.   Second, he contends that the right to trial by jury enjoys greater protection under the Washington Constitution and that recent changes to the juvenile justice system change the analysis of the juvenile jury trial right in this state.   Finally, he argues that the right to trial by jury should be examined in the individual case and that the lack  of rehabilitative options available under his particular conviction should trigger the right to a jury trial.   These arguments are contrary to precedent.

1. The Federal Constitution

¶ 11 Chavez's first argument relies on the recent U.S. Supreme Court decisions of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to establish a broader right to a jury trial in criminal proceedings.   In Crawford, considering whether admitting hearsay against a criminal defendant violated the Confrontation Clause, the court analyzed the clause within its historical context and concluded that it prohibits the admission of hearsay unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant.  Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354.   In Blakely, considering whether the right of a jury trial extended to sentence-enhancing factors in criminal proceedings, the court again analyzed the right's history and concluded that it did apply to the aggravating factors.  Blakely, 542 U.S. at 308, 124 S.Ct. 2531.   Applying this historical analysis to the juvenile jury trial right, Chavez reasons that because the law drew no distinction between the jury trial rights of juveniles and adults when the Sixth Amendment was enacted, a juvenile is entitled to a jury trial.

 ¶ 12 The argument that Blakely mandates a right of jury trial for juveniles has been foreclosed by our holding in State v. Meade, 129 Wash.App. 918, 120 P.3d 975 (2005).   There, we held that the court in Blakely “showed no intention ․ to overrule its well-established holding that the right to a jury does not attach to the traditional juvenile justice system.”  Meade, 129 Wash.App. at 925-26, 120 P.3d 975 (citing McKeiver, 403 U.S. at 543, 91 S.Ct. 1976).

 ¶ 13 To be sure, Blakely and Crawford demonstrate the U.S. Supreme Court's emphasis on historical context in interpreting the Constitution.   But the historical fact that no distinction existed between juveniles and  adults regarding the right to a jury trial when the Sixth Amendment was enacted is unpersuasive. When the Bill of Rights was promulgated, no juvenile justice system existed.   See Mary M. Prescott, Note:  Another Option for Older, Nonviolent Juveniles:  Statutory Retention of Juvenile Court Jurisdiction Past the Age of Majority, 85 Iowa L.Rev. 997, 1010 (2000) (noting that the juvenile justice system originated in 1899).   Because children were subject to the same criminal justice system as adults, it was natural for them to have the same right to a jury trial.   This does not alter the U.S. Supreme Court's holding that a jury trial is not constitutionally required in a separate proceeding designed to rehabilitate minors.   See McKeiver, 403 U.S. at 547, 91 S.Ct. 1976;  see also Schaaf, 109 Wash.2d at 14, 743 P.2d 240 (“It does no violence to our state's common law history to give credence to a 70-year-old legal system that was nonexistent in our territorial days.”).

2. The Washington Constitution

 ¶ 14 Chavez's Gunwall³ analysis to establish that the Washington Constitution affords a broader jury trial right than the U.S. Constitution is not persuasive;  the Washington Supreme Court has long held that the state constitution does not require a jury trial for juvenile offenders.   See Schaaf, 109 Wash.2d at 16, 743 P.2d 240.   But Chavez argues that the courts have tolerated denying jury trials for juveniles only because of the juvenile system's rehabilitative focus.   He reasons that juveniles must be afforded jury trials once juvenile proceedings become “akin to an adult criminal prosecution.”   Br. of Appellant at 14 (quoting State v. Lawley, 91 Wash.2d 654, 656, 591 P.2d 772 (1979)).   Chavez then lists a series of changes to the juvenile justice system “over the last decade,” which, according to Chavez, have rendered the system more penal and more akin to the adult system.   See Br. of Appellant at 14-19.

¶ 15 Again, this argument is foreclosed by our holding in Meade.   There we held that, despite numerous recent amendments to the Juvenile Justice Act, the system “remains focused on rehabilitation.”  Meade, 129 Wash.App. at 925, 120 P.3d 975 (citing State v. Watson, 146 Wash.2d 947, 952-53, 51 P.3d 66 (2002));  see also In re Dependency of A.K., 130 Wash.App. 862, 884-85, 125 P.3d 220 (2005);  State v. Tai N., 127 Wash.App. 733, 739-40, 113 P.3d 19 (2005), review denied, 156 Wash.2d 1019, 132 P.3d 735 (2006).

3. Juveniles Charged with Serious Offenses

 ¶ 16 Finally, Chavez claims that, even if the bench trial requirement is constitutional in its general application, as applied to him it is not.   Because the serious charges against him disqualified him from “all of the special rehabilitative programs available to other juveniles,” he argues that his trial was akin to an adult criminal proceeding and therefore required a trial by jury.   Br. of Appellant at 22.

¶ 17 The State counters that regardless of the alternative dispositions for which Chavez is not eligible, he still qualifies for rehabilitation programs during his incarceration.   In particular, the State notes that Chavez is being held at a juvenile rehabilitation administration agency, which offers an array of rehabilitative services, and that the sentencing guidelines in the juvenile system are intended to respond to the needs of youthful offenders.

¶ 18 In imposing Chavez's disposition, the trial judge gave great weight to two psychological evaluators' reports that recommended the best situation for Chavez's rehabilitation and emotional growth.   And defense expert Dr. Trowbridge endorsed the psychotherapy available in juvenile institutions as being more suited to Chavez's individual needs than the services available in adult prisons.   Because this sentencing approach shows that the State was processing Chavez in a justice system more focused on rehabilitation than the adult criminal system would have been, we find Chavez's “as applied to him” argument unpersuasive.

 II. Separation of Powers

¶ 19 Chavez asks that we dismiss his assault conviction with prejudice.   Count II charged Chavez with second degree assault.   The relevant statute states that a defendant is guilty of assault if he “[a]ssaults another with a deadly weapon.”  RCW 9A.36.021(1)(c). Because the statute does not define “assault,” the courts have supplied the common law definition.   See State v. Frazier, 81 Wash.2d 628, 631, 503 P.2d 1073 (1972);  State v. Rush, 14 Wash.2d 138, 139-40, 127 P.2d 411 (1942);  State v. Shaffer, 120 Wash. 345, 348-50, 207 P. 229 (1922).   Chavez argues that this judicial definition of an essential element of a crime violates the separation of powers.

 ¶ 20 A party challenging the constitutionality of a statute bears the burden of proving that the statute is unconstitutional beyond a reasonable doubt.  State ex rel. Peninsula Neighborhood Ass'n v. Wash. State Dep't of Transp., 142 Wash.2d 328, 335, 12 P.3d 134 (2000).   While the Washington Constitution contains no express separation of powers clause, the doctrine has been presumed throughout the state's history by the division of government into three separate branches.  Carrick v. Locke, 125 Wash.2d 129, 134-35, 882 P.2d 173 (1994).   The principle is violated when “the activity of one branch threatens the independence or integrity or invades the prerogatives of another.”  State v. Moreno, 147 Wash.2d 500, 505-06, 58 P.3d 265 (2002) (quoting Carrick, 125 Wash.2d at 135, 882 P.2d 173).   But the doctrine does not require that the various branches be “hermetically sealed off from one another.”  Carrick, 125 Wash.2d at 135, 882 P.2d 173.   They “must remain partially intertwined if for no other reason than to maintain an effective system of checks and balances, as well as an effective government.”   Carrick, 125 Wash.2d at 135, 882 P.2d 173 (citing In re Juvenile Director, 87 Wash.2d 232, 239-40, 552 P.2d 163 (1976)).   Because the doctrine protects institutional rather than individual interests, a history of cooperation within the institution in a given instance militates against a finding of a separation of powers violation.  Carrick, 125 Wash.2d at 136, 882 P.2d 173.

  ¶ 21 Chavez's claim raises two potential separation of powers violations.   First, the courts may violate the doctrine if they encroach on legislative functions.   See State v. Wadsworth, 139 Wash.2d 724, 734, 991 P.2d 80 (2000).   Second, a statute may be unconstitutional if the legislature delegates to the judiciary a function that is reserved exclusively to the legislature by the constitution.  Sackett v. Santilli, 146 Wash.2d 498, 504, 47 P.3d 948 (2002).   Chavez's arguments fail to demonstrate either violation.

 ¶ 22 Although the legislature's function is to define the elements of a crime, the “legislature has an established practice of defining prohibited acts in general terms, leaving to the judicial and executive branches the task of establishing specifics.”  Wadsworth, 139 Wash.2d at 743, 991 P.2d 80.   For example, the bail-jumping statute criminalizes the failure to appear before a court, RCW 9A.76.170, but the courts determine the dates on which the defendant must appear.  Wadsworth, 139 Wash.2d at 736-37, 991 P.2d 80.   In protection-order legislation, the legislature specifies when the orders may be issued and the criminal intent necessary for a violation, but the courts determine the specific prohibitions.  Wadsworth, 139 Wash.2d at 737, 991 P.2d 80.   The legislature has broadly defined the elements of criminal contempt as intentional disobedience to a judgment, decree, order, or process of the court, but the courts declare the specific acts of disobedience.  Wadsworth, 139 Wash.2d at 737, 991 P.2d 80.   The legislature's history of delegating to the judiciary how statutes will be specifically applied demonstrates that the practice does not offend the separation of powers doctrine.   See Carrick, 125 Wash.2d at 136, 882 P.2d 173.

 ¶ 23 Moreover, the legislature has instructed that the common law must supplement all penal statutes.  RCW 9A.04.060. This statute performs two relevant functions.   It ratifies the judicial practice of supplying common law definitions to statutes.   And it affirmatively defines the elements of criminal statutes as containing common law definitions.   See State v. Smith, 72 Wash.App. 237, 241, 864 P.2d 406 (1993).   Accordingly, the legislature has not delegated to the judiciary the task of defining “assault,” but  rather has instructed the judiciary to define assault according to the common law.

 ¶ 24 Finally, the legislature has acquiesced to the courts' common law definition of assault, both by not changing the definition and by enacting RCW 9A.04.060. The legislature removed the statutory definition of assault from the criminal code in 1909.   When the legislature enacted RCW 9A.04.060 in 1975, Smith, 72 Wash.App. at 241, 864 P.2d 406, we presume it was aware of the common assault definitions the courts had been using for the preceding half century. See State v. Carlson, 65 Wash.App. 153, 157-58, 828 P.2d 30 (1992).⁴  Had the legislature believed its institutional integrity was being threatened by the courts' definition, it could have inserted its own definition into the statute.   Instead, it enacted a general provision endorsing the courts' historical use of the common law to define assault.

¶ 25 In summary, consistent with their history, the legislative and judicial branches have cooperated in defining the offense of assault.   Chavez has presented no authority to show that this established practice is unconstitutional beyond a reasonable doubt.   We affirm Chavez's second degree assault conviction.

¶ 26 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

III. Miranda Waiver

¶ 27 After his arrest, Chavez gave statements to three different police officers.   Before each statement, the interrogating officer advised Chavez of his Miranda rights.   The trial court admitted the statements, ruling that Chavez voluntarily waived his Miranda rights.   Chavez now challenges the ruling.

¶ 28 A confession is admissible “if made after the defendant has been advised concerning rights and the defendant then knowingly, voluntarily and intelligently waives those rights.”  State v. Aten, 130 Wash.2d 640, 663, 927 P.2d 210 (1996) (citing State v. Rupe, 101 Wash.2d 664, 679, 683 P.2d 571 (1984)).   In determining admissibility, the court considers “a defendant's physical condition, age, mental abilities, physical experience, and police conduct,” among other factors.  Aten, 130 Wash.2d at 663-64, 927 P.2d 210.   We will not disturb the trial court's finding that a confession is voluntary if substantial evidence supports it.  Aten 130 Wash.2d at 664, 927 P.2d 210.   We give significant weight to the trial judge's finding that a confession was knowing and intelligent because the trial judge is in a better position than we are to determine the defendant's mental competency.  State v. Lanning, 5 Wash.App. 426, 434, 487 P.2d 785 (1971).

¶ 29 In bench proceedings, because a trial judge is presumed to know the rules of evidence and to be capable of disregarding inadmissible evidence, we encourage the liberal admission of evidence.  State v. Bell, 59 Wash.2d 338, 365, 368 P.2d 177 (1962);  (see also State v. Melton, 63 Wash.App. 63, 68, 817 P.2d 413 (1991)).

Where a case is heard by a judge without a jury, a new trial should not be granted for error in the admission of evidence, if there remains substantial admissible evidence to support the findings, unless it appears that the findings are based on the evidence which should have been excluded.

Bell, 59 Wash.2d at 365, 368 P.2d 177 (quoting State v. Ryan, 48 Wash.2d 304, 308, 293 P.2d 399 (1956).)   These principles apply to juvenile proceedings.   See In re Welfare of Noble, 15 Wash.App. 51, 58, 547 P.2d 880 (1976).

¶ 30 Pursuant to CrR 3.5, the trial judge conducted a hearing before determining whether each of the statements was admissible.   During these hearings, the officers testified that, at the time of interrogation, Chavez was rational and oriented, appeared to understand the situation, was able to communicate in English, and did not appear to be under the influence of drugs or alcohol.   In addition, because two of the statements were recorded, the trial judge had the benefit of listening to the defendant's demeanor at the time of waiver and confession.   This was substantial evidence to support the trial judge's finding that the waiver was intelligent, knowing, and voluntary.

¶ 31 To be sure, the trial judge stated that Chavez, at 14 years of age, would be incompetent to waive his original defense attorney's conflict of interest.   This was not a formal finding, but rather a comment made by the judge during the conflict discussion.   The judge offered no basis for the opinion other than the defendant's age.   Age is not dispositive of capacity to waive Miranda rights.   See, e.g., Noble, 15 Wash.App. at 58, 547 P.2d 880 (noting trial court's finding that 13-year-old had knowingly and intelligently waived his Miranda rights and had voluntarily given a statement).   Thus, the comment about Chavez's age during the conflict discussion does not preclude the court from later finding that Chavez voluntarily waived his Miranda rights.

IV. Hearsay

¶ 32 Chavez argues that the trial court erred in admitting the recording of Joan Chavez's 911 call.   He claims that the State did not lay a proper foundation to admit hearsay under ER 803(a)(5) because it failed to establish either that Joan lacked sufficient recollection about the matter or that the recording correctly reflected her knowledge.

¶ 33 A recorded recollection is not excluded by the hearsay rule if 1) it concerns “a matter about which a witness once had knowledge,” 2) the witness “now has insufficient recollection to enable the witness to testify fully and accurately,” 3) it is “shown to have been made or adopted by the witness when the matter was fresh in the witness' memory,” and 4) it is shown to reflect the witness's prior knowledge correctly.  ER 803(a)(5).   Here, the first and third elements are not in dispute.

¶ 34 The fourth element may be met without a direct averment by the witness if the circumstances provide sufficient indicia of reliability.   State v. Alvarado, 89 Wash.App. 543, 551-52, 949 P.2d 831 (1998).   Relevant circumstances include:

(1) whether the witness disavows accuracy;  (2) whether the witness averred accuracy at the time of making the statement;  (3) whether the recording process is reliable;  and (4) whether other indicia of reliability establish the trustworthiness of the statement.

Alvarado, 89 Wash.App. at 552, 949 P.2d 831.   The circumstances here sufficiently indicate reliability so that the witness's direct statement of accuracy was unnecessary.   Joan never disavowed the accuracy of the statements she made to the 911 operator.   She testified that she was trying to give the operator a full and complete description of what had occurred and that the events were fresh in her mind when she made the call.   Whether this was enough to correctly reflect Joan's prior knowledge was within the trial judge's discretion.

¶ 35 The second element is met when the witness can testify generally about the matter, but cannot remember details about critical issues.   See United States v. Williams, 571 F.2d 344, 349 (6th Cir.1978).   Here, in attempting to establish this foundation, the prosecutor asked the following questions:

Do you remember what you told the 911 operator?

․

Do you remember telling the 911 operator what Azel said?

․

Is it fair to say, you just said you don't remember what you told the 911 operator in terms of what Azel said?

RP (March 7, 2005) at 64.   Notably, the prosecutor did not ask Joan if she remembered what Chavez actually said or did.   Joan was asked only about her own statements to the 911 operator.   From the context of this case, it is clear that the matter in question, the purpose for which the 911 call was admitted, was Chavez's behavior.   Joan testified extensively about that.   And the prosecutor's questions about Joan's memory of her own statements to the 911 operator failed to lay a foundation for an insufficient recollection of the facts in question.   Admission of the tape as a recorded recollection exception to the hearsay rule therefore was error.

¶ 36 Nonetheless, this error does not entitle Chavez to a new trial.   As explained above, an error in admitting evidence in a bench proceeding mandates a new trial only where there is insufficient additional evidence to support the findings or the findings appear to be based on the inadmissible evidence.   Bell, 59 Wash.2d at 365, 368 P.2d 177.   The only finding of fact that appears to have relied on the content of the 911 call for support was finding 9, which states in pertinent part:

The respondent also said, “I'm going to start with you if you don't get out of my way.”   This latter finding is supported by that portion of Joan's 911 call which was played into the record, which, given the totality of the circumstances, accurately states what the respondent said.

SCP at 24.   Eliminating this quote from the findings of fact and conclusions of law, there remains ample evidence of a hostile, armed confrontation between Chavez and his mother.   The exact language was not necessary.   Thus, sufficient evidence supports the findings of guilt on all counts without the 911 call.

V. Statement of Additional Grounds

¶ 37 In a statement of additional grounds (SAG), Chavez raises two challenges to his conviction.   In the first challenge, he claims that the charges of attempted murder should have been dropped because the Model Penal Code defines a substantial step as “lying in wait or following.”   SAG 1. He argues that he was neither lying in wait nor following and that he was on his way to a friend's house when he left Sequim in his mother's van.

¶ 38 Evidence is sufficient to support a conviction if, 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.  State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980).   The trial court considered Chavez's explanations for his actions and found them to be not credible.   The trial court found a substantial step where Chavez, in conformity with his stated plan for murdering the three coaches, drove with a loaded shotgun to the high school where he expected to find the coaches.   The fact that the coaches were not there, making the murder impossible to complete, is not a defense to the crime of attempt.   See RCW 9A.28.020(2).   The evidence is sufficient to support the conviction.

¶ 39 In the second additional ground, Chavez requests a reduced sentence on the grounds that his sentence is unfair because he is a first time offender and has become rehabilitated during his time of incarceration.   A standard range disposition is not appealable on the ground of being clearly excessive or too lenient.  RCW 13.40.160(2), .230(2).   The trial court imposed the standard range disposition for Chavez's convictions.  RCW 13.40.0357, .193(2). Calculation of the standard range took into account the fact that this was Chavez's first offense.   Defense counsel argued for a lighter disposition based on mitigating factors.   The trial court considered these arguments but found they did not entitle Chavez to a reduction.   There is no basis for adjusting the disposition on appeal.

¶ 40 Affirmed.

FOOTNOTES

1.   See Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2.   Because the various volumes of the record are not numbered consecutively, references to the record in this opinion identify the volume by date of the proceeding.

3.   See State v. Gunwall, 106 Wash.2d 54, 58, 720 P.2d 808 (1986).

4.   Although Chavez claims that the courts enlarged the definition of assault in 1978, the expansion is “actual battery,” added to the previously noted definitions of “attempt to commit a battery” and “placing another in apprehension of harm.”   Br. of Appellant at 27 (citing State v. Strand, 20 Wash.App. 768, 780, 582 P.2d 874 (1978);  State v. Garcia, 20 Wash.App. 401, 403, 579 P.2d 1034 (1978)).   The cited cases indicate that this was an interpretation of the common law already being applied, rather than an expansion of that law.   In any event, the legislature has arguably acquiesced to this definition as well, by leaving the law unchanged for 28 years.

ARMSTRONG, J.