                                                                       FILED
                                                                   OCTOBER 10, 2017
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 34076-7-111
                     Respondent,             )         (consolidated with
                                             )         No. 34957-8-111)
      v.                                     )
                                             )
RICHARD EUGENE YALL UP,                      )
                                             )
                     Appellant.              )         UNPUBLISHED OPINION
                                             )
                                             )
In the Matter of the Personal Restraint of   )
                                             )
RICHARD EUGENE YALLUP,                       )
                                             )
                     Petitioner.             )

      KORSMO,    J. -Richard Yallup, by appeal and personal res.traint petition (PRP),

challenges aspects of the judgment entered against him by the Yakima County Superior

Court following convictions on 11 felony offenses. 1 We affirm the convictions, but

remand for either a restitution hearing or correction of the judgment and sentence.




       1
        One count of second degree assault was merged into a conviction for first degree
robbery, leaving only ten counts for sentencing.
No. 34076-7-111; 34957-8-111
State v. Yallup; In re Pers. Restraint of Yallup


                                            FACTS

       Although the numerous convictions reflect an extensive evening of criminal

behavior that was the subject of a significant amount of trial time, little of that background

is relevant to the issues we consider on appeal. The one aspect of the trial that presents an

issue on appeal involved Mr. Yallup's flight from a gun battle with law enforcement into a

house and his action in taking the occupants hostage.

       The State charged Y all up with three counts of first degree kidnapping arising from

the intrusion into the house, but one of those counts was dropped at the conclusion of the

State's case.2 The remaining two victims were a husband and wife. The wife had been

injured by a gunshot and took refuge in the bathroom at the outset of the defendant's

entry into the house; Mr, Yallup did not know about her presence until later in the

incident. Upon discovering her, he set her free.

       After a lengthy discussion, the trial court, on each of the remaining kidnapping

counts, instructed the jury on both first degree kidnapping and the inferior degree offense

of second degree kidnapping, but refused to give instructions on the lesser included

offense of unlawful imprisonment. The jury returned a verdict of guilty on first degree

kidnapping of the husband, but found Mr. Y all up guilty only of second degree

kidnapping of the wife.



       2
           Mr. Yallup did not testify and the defense did not call any witnesses.

                                               2
No. 34076-7-111; 34957-8-111
State v. Yallup; In re Pers. Restraint of Yallup
                                                                                                II
       At sentencing, the defense opposed restitution to the insurance company and              I!
requested a restitution hearing on any restitution sought by the city of Sunnyside for          I
damage to its police vehicles. Report of Proceedings (RP) at 556. No hearing was held.

The court ordered the entire $56,350.66 sought by the prosecutor for restitution, a figure      I
that included restitution to the city of Sunnyside. RP at 565; Clerk's Papers (CP) at 344.
                                                                                                I
                                                                                                II
The court also imposed costs of incarceration in the local jail up to a maximum of $1,000.

RP at 566; CP at 344. An exceptional sentence was imposed on one count that was                 I!
ordered to run consecutive to the other sentences. RP at 564; CP at 342.                        I
       Mr. Yallup timely appealed to this court. His appointed counsel filed a brief in         I
support of his appeal. Mr. Yallup also filed a PRP that he personally prepared. The two         I!
cases were consolidated and considered by a panel without argument.
                                                                                                I
                                        ANALYSIS                                                I
                                                                                                I
       The appeal challenges the failure to give instructions on the included offense of

unlawful imprisonment and also challenges the restitution and incarceration cost awards. 3      II
                                                                                                I
The PRP alleges judicial bias and a conspiracy by the attorneys involved in his case. We
                                                                                                I
will address first the instructional issue, then jointly address the financial arguments, and   lI
finally give the PRP brief consideration.                                                       I
                                                                                                l
                                                                                                I

                                                                                                l
                                                                                                i
                                                                                                i
       3                                                                                        !
         Counsel also asks that we waive appellate costs in the event that the State            I
prevailed on appeal. Since both parties prevail on some claims, there is no substantially
prevailing party on appeal and no costs are awarded to either side.

                                              3
                                                                                                II
No. 34076-7-111; 34957-8-111
State v. Yallup; In re Pers. Restraint of Yallup


       Lesser Include Offense Instruction Request

       On appeal, Mr. Yallup argues that the trial court erred in failing to instruct on

unlawful imprisonment as an included offense to the first degree kidnapping counts. His

argument fails because there was no factual reason for believing that only unlawful

imprisonment occurred.

       The law governing this issue is very well settled. By statute, either party in a

criminal case is entitled to an instruction on a lesser included offense in appropriate

circumstances. RCW 10.61.006. 4 In order to instruct on an included offense, the crime

actually must be an included offense and there must be a factual basis for believing that

the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382

(1978). These are known as the "legal" and "factual" prongs. State v. Berlin, 133 Wn.2d

541, 545-46, 947 P.2d 700 (1997).

       The factual prong is satisfied when there is affirmative evidence showing that only

the lesser crime actually was committed. State v. Speece, 115 Wn.2d 360, 362-363, 798

P.2d 294 (1990); State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990). The factual

prong is not established merely by the fact that the jury might disregard some of the

evidence in the case. "Instead, some evidence must be presented which affirmatively




       4



                                                                                             I
        Statutes also provide that parties are entitled to instructions on inferior degree
offenses and attempted crimes. RCW 10.61.003, .010.

                                              4
                                                                                             I
                                                                                             I
No. 34076-7-111; 34957-8-111
State v. Yallup; In re Pers. Restraint of Yallup


establishes the defendant's theory on the lesser included offense before an instruction will

be given." Fowler, 114 Wn.2d at 67. 5

       The parties do not dispute that unlawful imprisonment is a lesser included offense

of second degree kidnapping. The question remaining is whether there was a factual

basis for believing that only unlawful imprisonment was committed. The trial court

correctly concluded that the evidence failed to make that showing.

       In order to establish first degree kidnapping, as charged in this case, the State was

required to establish that Mr. Yallup abducted the victims to hold them as shields or

hostages. CP at 186, 188. To establish second degree kidnapping, the State needed to

show only that the defendant abducted the victims. CP at 190-192. "Abduct" was

defined as restraining a person in a place where the person was not likely to be found, or

restraining the person by using or threatening to use force. CP at 187. In order to

establish unlawful imprisonment, the prosecutor would have only needed to show that

Mr. Yallup knowingly restrained his victims. RCW 9A.40.040(1).




      5
        This court at one time had held the opposite, deciding that the factual prong
could be satisfied by a failure of proof. State v. Wilson, 41 Wn. App. 397, 704 P.2d 1217,
review denied, 105 Wn.2d 1003 ( 1985). Speece subsequently noted that Wilson was no
longer good law after Fowler. 115 Wn.2d at 363 n.4. This court later concurred in that
assessment. State v. Johnson, 59 Wn. App. 867, 873, 802 P.2d 137 (1990), rev'd on
other grounds, 119 Wn.2d 143,829 P.2d 1078 (1992).


                                              5
No. 34076-7-III; 34957-8-III
State v. Yallup; In re Pers. Restraint of Yallup


       The distinction between the two kidnapping offenses was the purpose for which

the defendant had abducted the victims, while the difference between kidnapping and

unlawful imprisonment was whether the defendant had abducted his victims or merely

restrained them. All that defense counsel could argue as a factual basis for the unlawful

imprisonment instruction was the fact that the jury did not have to believe the State's

evidence concerning the reason for taking the hostages. The trial judge accurately noted

that argument is insufficient. There must, instead, be some evidence that only unlawful

imprisonment was committed. For instance, if Mr. Yallup (or one of the victims) had

testified that he only restrained the victims without abducting them by using his gun, then

there would be a factual basis for the instruction.

       However, there was no evidence presented that would have allowed the jury to

find that the victims had been restrained rather than abducted. While the reason the

victims had been abducted was in dispute, the fact that they had been abducted was not.

There was no factual basis on which to instruct the jury on unlawful imprisonment. 6




       6
         With respect to the kidnapping of the husband, any error in failing to give the
instruction would have been harmless. It has long been recognized that the failure to
instruct on a lesser included offense is not prejudicial error when the jury has been
instructed on a different included offense and still returns a verdict on the greater crime.
See State v. Guilliot, 106 Wn. App. 355, 368-369, 22 P.3d 1266 (discussing cases),
review denied, 145 Wn.2d 1004 (2001); State v. Hansen, 46 Wn. App. 292, 297-298, 730
P.2d 706, 737 P.2d 670 (1987).

                                              6
No. 34076-7-III; 34957-8-III
State v. Yallup; In re Pers. Restraint of Yallup


       The trial court correctly rejected the requested lesser included offense instruction.

There was no error.

       Restitution Hearing and Incarceration Costs

       The State concedes that Mr. Yallup was denied his restitution hearing and agrees

with appellant's request that the case be remanded for that purpose. The State also agrees

that the trial court imposed incarceration costs without conducting a proper inquiry into

Mr. Yallup's ability to pay those costs. It asks that we remand for the trial court to strike

the requirement rather than undergo the expense of returning Mr. Yallup for a

resentencing hearing. We partially accept these concessions.

       By statute, Mr. Yallup had a right to request a restitution hearing. RCW

9.94A.753. As a component of a sentencing hearing, Mr. Yallup also has a right to be

present for the hearing. State v. Kisor, 68 Wn. App. 610, 620, 844 P.2d 1038 (1993);

CrR 3.4(a).

       At sentencing, Mr. Yallup's counsel asked the court to ignore the restitution

requests by insurance companies, arguing that they had accepted the risk of loss due to

their contracts with the victims. He also made the following argument:

       The same is true for the Washington Cities Insurance Fund and the self-
       insurance for the city of Sunnyside. I haven't seen any bills from the city
       of Sunnyside or from the Washington Insurance Authority. If the court




                                              7
No. 34076-7-111; 34957-8-111
State v. Yallup; In re Pers. Restraint of Yallup


       wants to impose those, I'd simply ask that we do a restitution hearing with
       respect to those matters.

RP at 556. The trial court apparently rejected his contention that the insurance

companies were not entitled to restitution. 7 The court did not address counsel's request

for a restitution hearing. That was error.

       We thus remand for a restitution hearing. However, that hearing is limited to the

restitution related to the city of Sunnyside's losses because that was the only request

made by defense counsel; his challenge to the insurance company claims was a meritless

legal argument. The trial court has discretion, if it so desires, to broaden the scope of the

hearing on remand. If there is a restitution hearing, the court can take up the matter of the

defendant's ability to pay incarceration costs.

       If the State elects to not pursue restitution for the city, then the court can enter an

amended restitution order by agreement without the need of a hearing. It may also enter

an order striking the incarceration costs at that time.

       We remand these issues for further proceedings as described.

       Personal Restraint Petition

       Mr. Yallup in his PRP contends that his various attorneys have conspired against

him and that the judge who heard a pretrial motion was biased against him. He presents


       7
         It is entirely appropriate to order restitution to insurance companies that have had
                                                                                                 lI
to pay for losses caused by a defendant's criminal actions. State v. Ewing, 102 Wn. App.
349, 7 P.3d 835 (2000).
                                                                                                 i
                                                                                                 '
                                               8                                                  I
                                                                                                 Ir
                                                                                                 I
No. 34076-7-III; 34957-8-III
State v. Yallup; In re Pers. Restraint of Yallup


insufficient evidence to establish his conspiracy claim and fails to demonstrate judicial

bias.

        We begin by noting the petitioner's heavy burdens in this action. Because of the

significant societal costs of collateral litigation often brought years after a conviction and

the need for finality, relief will only be granted in a PRP if there is constitutional error

that caused substantial actual prejudice or if a nonconstitutional error resulted in a

fundamental defect constituting a complete miscarriage of justice. In re Pers. Restraint

of Woods, 154 Wn.2d 400,409, 114 P.3d 607 (2005). It is the petitioner's burden to

establish this "threshold requirement." Id. To do so, a PRP must present competent

evidence in support of its claims. In re Pers. Restraint ofRice, 118 Wn.2d 876, 885-886,

828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). If the facts alleged would potentially

entitle the petitioner to relief, a reference hearing may be ordered to resolve the factual

allegations. Id. at 886-887.

        Here, Mr. Yallup has presented no evidence in support of his conspiracy contentions.

Accordingly, we do not further discuss mention them. Thanks to a very helpful PRP

response from the State, we have an understanding of Mr. Yallup's bias argument.

        On the eve of a trial date, nearly two years after the incidents that gave rise to the

charges, the State provided disclosure of a recorded statement made by Mr. Yallup while in

the hospital and a police report concerning that interview. His counsel moved to dismiss

the case for governmental mismanagement due to the late disclosure. The motion judge,

                                               9
No. 34076-7-III; 34957-8-III
State v. Yallup; In re Pers. Restraint of Yallup


the Honorable David Elofson, instead decided to exclude the evidence and found that trial

counsel had not rendered ineffective assistance in failing to investigate the episode. The

court, however, also let defense counsel withdraw and a new attorney was appointed.

       No transcript of the hearing before Judge Elofson was ordered up for the appeal.

Mr. Yallup complains about that fact, as well as the fact that there is a gap in the recorded

911 call. The PRP fails to establish how these alleged deficiencies prejudiced him at trial

or on appeal. He also fails to establish that Judge Elofson was biased against him. The

fact that the judge did not rule as Mr. Yallup desired simply does not establish bias.

Neither does it establish that the judge was a participant in a conspiracy against him.

       The PRP fails to meet its burdens of proving facts that support the claims and that

there was prejudicial error entitling him to relief.

       The PRP is dismissed. The convictions are affirmed and the restitution matter is

remanded for further proceedings consistent with this opinion.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



WE CONCUR:




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