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                                                                 Supreme Court Clerk


  IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                                   NO. 89147-8


                    Respondent,                        ENBANC
              v.


MARIO ALEJANDRO MEDINA,                                Filed   APR 1 7 2014


                    Petitioner.



      GORDON McCLOUD, J.-While petitioner Mario Medina was awaiting

retrial on charges of second degree murder, he was ordered to participate in two King

County Community Center for Alternative Programs (CCAP) (pronounced "sea-

cap"): "CCAP Enhanced" and "CCAP Basic."             Medina participated in these

programs for approximately five years before his second trial resulted in a

conviction.   He argues that he is entitled, as a matter of both statutory and

constitutional law, to credit for time served in the alternative programs. Both the
State v. Medina (Mario Alejandro), No. 89147-8



trial court and the Court of Appeals rejected this argument. We granted review and

now affirm.

                                     FACTS

      Medina was originally charged with first degree intentional murder in 1998.

The jury convicted Medina and his codefendant, Felipe Ramos, of second degree

felony murder based on the predicate offense of second degree assault. Those

convictions were vacated in light of In re Personal Restraint ofAndress, 147 Wn.2d

602, 56 P.3d 981 (2002), which held that assault was not a predicate offense for

felony murder. State v. Ramos, 124 Wn. App. 334, 101 P.3d 872 (2004).

      On remand in 2005, Medina was arraigned on first degree manslaughter

charges. He moved to dismiss, the trial court denied the motion, and this court

granted direct review. In 2008, this court affirmed, meaning that the trial could

proceed. State v. Ramos, 163 Wn.2d 654, 661-62, 184 P.3d 1256 (2008). Pending

retrial, the trial court released Medina on personal recognizance on several

conditions, including participation in CCAP.

      CCAP is "a weekly itinerary ... of structured programs" administered at the

Y esle.r Building in downtown Seattle. 1 There are two different CCAP tracks: CCAP



      1
      Dep't of Adult and Juvenile Detention, KING COUNTY COMMUNITY CORRECTIONS
ALTERNATIVES      AND      SERVICES,      http://www.kingcounty.gov/courts/detention/
community_corrections/ programs.aspx#ccap_(last visited Apr. 15, 2014).
                                         2
State v. Medina (Mario Alejandro), No. 89147-8



Enhanced and CCAP Basic. 2 Offenders ordered into CCAP Enhanced report in

person to the Yesler Building daily, while those ordered into CCAP Basic report

only by phone. 3 From January 2007 until July 2011, Medina alternated between

CCAP Enhanced and CCAP Basic. He spent a total of about nine months in CCAP

Enhanced and about three years and nine months in CCAP Basic. 4

      King County established CCAP under the auspices of former RCW 9.94A.380

(1988)/current RCW 9.94A.680. 5 That statute has authorized courts to impose

"alternatives to total confinement" for "offenders [with sentences] for less than one




      2
         Clifton Curry, Metropolitan King County Council Law, Justice and Human
Services Committee Staff Report (re Proposed Ordinance 2008-0496), Sept. 18, 2008,
available at http://www.kingcounty.gov/council/agendas.aspx (last visited Apr. 15, 2014).

      3
       Debra Srebnik, The Relationship of Intensive Outpatient Chemical Dependency
Treatment at the Community Center for Alternative Programs to Community Corrections
Placements, KING COUNTY DEP'T OF COMMUNITY AND HUMAN SERVICES, May 2011.

      4
        The trial court ordered Medina into the CCAP Enhanced program on January 12,
2007. 2 Clerk's Papers (CP) at 179-81. On April6, 2007 he was ordered into the CCAP
Basic program, 2 CP at 182-83, where he remained until October 31, 2007, when he was
moved back to the Enhanced program, 2 CP at 186-88. On April23, 2008, he was ordered
back into the CCAP Basic program and on July 5, 2011, back to the Enhanced program. 2
CP at 189, 191-93. On July 13, 2011 he was placed on electronic home detention pending
his appeal. 2 CP at 19 5.
       5
        Curry, supra, n.2 (proposing an amendment to the King County Code to "more
clearly define CCAP as a 'county supervised community option"' in order to "take
advantage of the provisions of [RCW 9.94A.680(3)]").

                                            3
State v. Medina (Mario Alejandro), No. 89147-8



year," since 1983. LAWS OF 1983, ch. 115, § 9. In 1999, it was amended to give

sentencing courts permission to allow county jails to "convert jail confinement to an

available county supervised community option." LAWS OF 1999, ch. 197, § 6.

      When Medina was in CCAP Enhanced, he reported in person to the Y esler

Building every weekday morning at 9:00a.m. and remained there "until discharged

by department staff." 6 Beyond that bare fact, the record does not contain any

information about the nature of Medina's participation in CCAP Enhanced, but we

note that in 2008 the King County Code (KCC) was amended to provide that

offenders ordered into a '"county supervised community option' ... must participate

for a minimum of six hours per day of structured programs offered through, or

approved by, the community corrections division." KCC 5.12.010(B). 7

      At his sentencing after retrial, Medina requested credit for the time he spent

in both CCAP Enhanced and CCAP Basic. The trial judge stated that he would grant

the request if he could-because Medina's conduct while awaiting retrial had been



      6
         CP at 186 (Conditions of Conduct for Persons Ordered by the King County
Superior Court into the CCAP Enhanced) ("You shall report to [CCAP] by 9:00 AM on
11/7/07 and report each weekday Monday through Friday thereafter. You shall remain on
the premises until discharged by department staff.").
       7   Available   at   http://www.kingcounty.gov/council/legislation/KC_code/
08_Title_5.aspx. It is not clear whether that amendment changed the minimum
requirements for CCAP participation or whether it merely codified preexisting
requirements.
                                          4
State v. Medina (Mario Alejandro), No. 89147-8



exemplary-but that he believed it was barred by statute. The Court of Appeals

affirmed, and Medina petitioned this court for review. State v. Ramos, noted at 174

Wn. App. 1072, 2013 WL 1956640, review granted sub nom., State v. Medina, 178

Wn.2d 1018, 312 P.3d 651 (2013).

                                    ANALYSIS

      I.    The Sentencing Reform Act Does Not Entitle Medina to Credit for
            Time Served in CCAP Enhanced or CCAP Basic

      Under the Sentencing Reform Act of 1981 (SRA), a defendant must be

sentenced in accordance with the law in effect at the time of his or her offense. RCW

9 .94A.345. In 1997, when Medina committed his offense, credit for time served was

governed by former RCW 9.94A.030(8) (1988) and former RCW 9.94A.030(26)

(1991), former RCW 9.94A.120(16) (1988), and former RCW 9.94A.380 (1988).

      Former RCW 9.94A.030(8) (1988) provides that '"[c]onfinement' means total

or partial confinement as defined in [RCW 9.94A.030]." LAWS OF 1996, ch. 289, §

1. Former RCW 9.94A.120(16) (1988) provides that "[t]he sentencing court shall

give the offender credit for all confinement time served before the sentencing if that

confinement was solely in regard to the offense for which the offender is being

sentenced." LAWS OF 1996, ch. 275, § 2. Neither of these statutes has been amended

since Medina's offense (although the latter has been recodified as RCW

9.94A.505(6)).

                                          5
State v. Medina (Mario Alejandro), No. 89147-8



       Former RCW 9.94A.030(26) (1991) defines "partial confinement."                  It

provides that

       "[p] artial confinement" means confinement for no more than one year
       in a facility or institution operated or utilized under contract by the state
       or any other unit of government, or, if home detention or work crew has
       been ordered by the court, in an approved residence, for a substantial
       portion of each day with the balance of the day spent in the community.
       Partial confinement includes work release, home detention, work crew,
       and a combination of work crew and home detention as defined in this
       section.

LAws OF 1996, ch. 289, § 1. This statute has not been amended since 1997, but it

has been recodified as RCW 9.94A.030(35).

       The State contends, and the Court of Appeals agreed, that former RCW

9.94A.030(26) (1991) must be read together with former RCW 9.94A.180(1) (1988),

which provided that "[a]n offender sentenced to a term of partial confinement shall

be confined in the facility for at least eight hours per day." LAws OF 1991, ch. 181,

§ 4.   When these statutes are harmonized, the State argues, it is clear that "a

substantial portion of each day" really means "at least eight hours." See Suppl. Br.

ofResp't at 12; Ramos, 2013 WL 1956640, at *6 ("an offender must demonstrate

that this partial confinement included at least eight hours per day in a 'facility"' in

order to qualify for time served in partial confinement.). The State argues, and the

Court of Appeals concluded, that since CCAP did not confine Medina for at least



                                             6
State v. Medina (Mario Alejandro), No. 89147-8



eight hours each day, it did not constitute "partial confinement." 2013 WL 19 56640,

at *6.

         We disagree with that analysis.     This court has held that a defendant's

ineligibility for a particular type of partial confinement postconviction is not relevant

to the question of whether that defendant must be credited for pretrial time served

in that same type of partial confinement. State v. Speaks, 119 Wn.2d 204, 208, 829

P.2d 1096 (1992) (offender convicted of child molestation entitled to credit for

presentencing time on electronic home detention (EHD) even though the SRA

prohibited courts from sentencing persons convicted of child molestation to EHD).

In reaching that conclusion, we noted that "[t]he appropriateness of a type of

postconviction confinement . . . is a different issue . . . than whether the [SRA]

affords credit for a type of presentence restraint." ld. In light of the Speaks analysis,

we decline to "harmonize" former RCW 9.94A.030(26) (1991) and former RCW

9.94A.180(1) (1988) the way that the Court of Appeals below did. Ramos, 2013 WL

1956640, at *6.

         Nevertheless, we agree with the State that Medina is not entitled to credit for

time in CCAP. Former RCW 9.94A.030(26) (1991) defines "partial confinement"

in a manner that equates "confinement" with "residence" as contrasted with "work."

LAWS OF 1996, ch. 289, § 1 ("' [p]artial confinement' means confinement for no more


                                            7
State v. Medina (Mario Alejandro), No. 89147-8



than one year in a facility or institution ... or, if home detention or work crew has

been ordered ... in an approved residence" (emphasis added)). By extension, we

do not think that participation in the educational, counseling, and service-oriented

programs entailed in CCAP meets the statutory definition of "confinement."

Participation in these programs is similar to reporting for work or school-clearly,

the CCAP facility is not a residence.

      While this is sufficient to resolve the question presented, we note that our

conclusion also derives substantial support from the legislative history of former

RCW 9.94A.380 (1988)/current RCW 9.94A.680.

      Former    RCW      9.94A.380      (1988)/current RCW      9.94A.680     governs

"alternatives to total confinement." In 1997, that statute read as follows:

             Alternatives to total confinement are available for offenders with
       sentences of one year or less. These alternatives include the following
       sentence conditions that the court may order as substitutes for total
       confinement:

             ( 1) One day of partial confinement may be substituted for one
       day of total confinement;

              (2) in addition, for offenders convicted of nonviolent offenses
       only, eight hours of community service may be substituted for one day
       of total confinement, with a maximum conversion limit of two hundred
       forty hours or thirty days.

             For sentences of nonviolent offenders for one year or less, the
       court shall consider and give priority to available alternatives to total

                                           8
State v. Medina (Mario Alejandro), No. 89147-8



       confinement and shall state its reasons in writing on the judgment and
       sentence form if the alternatives are not used.

LAWS OF    1988, ch. 157, § 4.

       This statute has been amended three times smce 1997, and two of those

amendments are relevant here. 8 In 1999, former RCW 9.94A.380 (1988)/current

RCW 9.94A.680 was amended to provide that "[f]or offenders convicted of

nonviolent and nonsex offenses, the court may authorize county jails to convert jail

confinement to an available county supervised community option and may require

the offender to perform affirmative conduct pursuant to section 2 of this act." LAWS

OF   1999, ch. 197, § 6.    In 2009, it was amended to directly address credit for

presentence time served in a "county supervised community option"; it now permits

courts to credit such time "[f]or offenders convicted of nonviolent and nonsex

offenses":

       For offenders convicted of nonviolent and nonsex offenses, the court
       may credit time served by the offender before the sentencing in an
       available county supervised community option and may authorize
       county jails to convert jail confinement to an available to an available
       county supervised community option, may authorize the time spent in
       the community option to be reduced by earned release credit consistent
       with local correctional facility standards, and may require the offender
       to perform affirmative conduct pursuant to RCW 9.94A.607.

       8
        The third amendment occurred in 2002, when the term "community service" was
replaced with the term "community restitution." LAws OF 2002, ch. 175, § 12. Former
RCW 9.94A.380 (1988) was recodified as RCW 9.94A.680 in 2001. LAWS OF 2001, ch.
10, § 6.
                                          9
State v. Medina (Mario Alejandro), No. 89147-8




LAWS OF 2009, ch. 227, § 1.

      We agree with the State that if the 2009 amendment applied to Medina's

sentence, it would prohibit a court from granting him credit for presentence time in

CCAP.        Under the canon of expressio unius est exclusio alterius, the 2009

amendment must be construed as permitting credit for CCAP time only for

nonviolent offenders-and as impliedly prohibiting such credit for those convicted

of violent offenses. 9 But because Medina's eligibility for credit is governed by the

SRA provisions in effect in 1997, subsequent amendments are relevant only to the

extent that they shed light on the meaning and operation ofthe 1997 law.

       Here, the 2009 amendment sheds significant light on the earlier law. When

this amendment was proposed, it was accompanied by a bill report explaining that it

was designed to "resolve[] the disincentive to go into an alternative sentencing

option rather than serving less time sitting injail." 10 The report clearly indicates an



       9
         Wash. Natural Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 77 Wn.2d
94, 98,459 P.2d 633 (1969) ("[w]here a statute specifically designates the things or classes
of things upon which it operates, an inference arises in law that all [other] things or classes
of things . . . were intentionally omitted by the legislature" (citing State v. Roadhs, 71
Wn.2d 705, 707, 430 P.2d 586 (1967))).

        10
           H.B. REP. on H.B. 1361, at 3, 61st Leg., Reg. Sess. (Wash. 2009); see also S.B.
REP. on H.B. 1361, at 2, 61st Leg., Reg. Sess. (Wash. 2009) ("It is sometimes easier for a
person to sit in jail than participate in a program that requires affirmative conduct. This
bill will remove some of the barriers to getting people to participate.").
                                              10
State v. Medina (Mario Alejandro), No. 89147-8



intent to expand eligibility for credit for time served. If the 2009 amendment was

enacted to create an incentive for pretrial participation in "community option"

programs, it is reasonable to infer that this incentive did not exist before.

      Moreover, the 2009 amendment made credit for time served in community

options like CCAP merely discretionary.         LAWS OF    2009, ch. 227, § 1 ("[f]or

offenders convicted of nonviolent and nonsex offenses, the court may credit time

served by the offender before the sentencing in an available county supervised

community option" (emphasis added)). If these community options were forms of

partial confinement under former RCW 9.94A.030(26) (1991), credit for time spent

participating in those programs would not be discretionary. Rather, it would be

mandatory under RCW 9.94A.505(6) ("The sentencing court shall give the offender

credit for all confinement time served before the sentencing if that confinement was

solely in regard to the offense for which the offender is being sentenced" (emphasis

added)).

       This shows that the 2009 legislature perceived a need to expand credit for time
                                                                                '


served in "county supervised community options." Medina has not offered (and we

are not aware of) any contrary evidence that defendants were already regularly

receiving credit for time served in CCAP programs. Hence, neither CCAP Enhanced




                                           11
State v. Medina (Mario Alejandro), No. 89147-8



nor CCAP Basic constitutes "partial confinement" under the SRA for purposes of

mandatory credit for time served.

      II.    The United States Constitution Does Not Entitle Medina to Credit for
             Time Served in CCAP Prior to Sentencing

      Medina also claims that a failure to credit his CCAP time violates the equal

protection and double jeopardy clause protections guaranteed by the United States

Constitution. We disagree.

             A. The equal protection clause does not require that Medina receive
                credit for time spent in CCAP

      In Reanier v. Smith, 83 Wn.2d 342, 346, 517 P .2d 949 (197 4), this court held

that "an accused person, unable to or precluded from posting bail or otherwise

procuring his release from confinement prior to trial" was entitled to credit for time

served upon sentencing. The court based its decision on "principles of due process

and equal protection" and on "potential implications of double jeopardy." !d. at 34 7.

It reasoned that a contrary decision would result in two separate sets of sentencing

ranges-one for "those unable to procure pretrial release from confinement and

another for those fortunate enough to obtain such release"-and concluded that such

a sentencing regime would not survive rational basis review. !d. at 346-47. The

Reanier decision was applied to total confinement: "We conclude that considerations

of due process, equal protection and the prohibition against multiple punishments

                                          12
State v. Medina (Mario Alejandro), No. 89147-8



dictate that presentence jail time be credited against maximum and mandatory

minimum terms where applicable." Id. at 352-53.

      The Reanier decision absolutely bars the legislature from distinguishing

between rich defendants and poor defendants for the purpose of credit for time

served, but the legislature remains free to draw many other distinctions. In Harris

v. Charles, 171 Wn.2d 455,458-59, 256 P.3d 328 (2011), this court held that neither

the Fourteenth Amendment to the United States Constitution nor article I, section 12

of the Washington Constitution prohibited the legislature from crediting felons, but

not misdemeanants, for time served on EHD prior to trial. If the legislature wants

to credit pretrial time that does not amount to confinement-like the CCAP time at

issue here-for nonviolent offenders, but not for violent offenders, it may do so

under Harris. This distinction is rational.

             B. Denying Medina credit for time served in CCAP did not subject him
                to double jeopardy

      To determine whether a government action is sufficiently punitive to trigger

the double jeopardy protections provided by the Fifth Amendment to the United

States Constitution and article I, section 9 of our state constitution, 11 this court




       11We interpret article I, section 9 of the Washington Constitution to provide the
same protections that the Fifth Amendment to the United States Constitution provides.
Harris, 171 Wn.2d at 467 n.7.
                                            13
State v. Medina (Mario Alejandro), No. 89147-8



applies a two-part test. Harris, 171 Wn.2d at 467 (citing State v. Catlett, 133 Wn.2d

355, 366, 945 P.2d 700 (1997)). First, it asks whether the government intends the

action to be punitive. !d. If not, then it asks whether the action's purpose or effect

is nevertheless so punitive as to negate the government's nonpunitive intent. !d. In

Harris, this court concluded that EHD imposed as a condition of release pending

sentencing pursuant to Criminal Rules for Courts of Limited Jurisdiction (CrRLJ)

3.2 was not punitive for purposes of double jeopardy. Id. at 467-69. It based this

conclusion on the fact that CrRLJ 3.2 and Superior Court Criminal Rules (CrR) 3.2

were intended to "alleviate some of the burdens imposed upon an accused individual

awaiting trial" while at the same time ensuring his appearance, id. at 468 (emphasis

added), and the fact that EHD is not such a severe restriction on liberty that it negates

CrRLJ 3.2's nonpunitive intent. Id. at 470-73.

      Harris is directly on point because Medina was ordered into CCAP pursuant

to CrR 3.2. There is no indication that Medina's release to CCAP was more punitive

(in either intent or effect) than the release to EHD at issue in Harris. Moreover,

Medina bears the burden of proof on this issue. He has not offered any evidence that

his CCAP participation was punitive in effect, and indeed it appears that CCAP is

rehabilitative in design. The failure to credit Medina's CCAP time does not violate

double jeopardy clause protections.


                                           14
State v. Medina (Mario Alejandro), No. 89147-8



                                CONCLUSION

      Neither the SRA nor the United States Constitution entitles Medina to credit

for time served in the community option lmown as CCAP. We therefore affirm the

judgment of the Court of Appeals.




                                        15
State v. Medina (Mario Alejandro), No. 89147-8




 WE CONCUR:




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