                                                                 FILED 


                                                            MAR 21, 2013 


                                                    In the Office of the Clerk of Court 

                                                  W A State Court of Appeals, Division III 


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                         )           No. 30004-8-111
                                             )
                           Respondent,       )
                                             )
        v.                                   )           UNPUBLISHED OPINION
                                             )
ADELELMO BELTRAN, JR.,                       )

                                             )

                           Appellant.        )


      KORSMO, C.J. -    Adelelmo Beltran Jr. challenges his exceptional sentence,

arguing that the rapid recidivism factor is unconstitutionally vague. We disagree and

affirm the conviction and sentence.

                                         FACTS

      Mr. Beltran was charged with custodial assault after he fought with community

corrections officers around 6:00 p.m. on February 9, 2011. He had been released from

the Grant County Jail the previous day at 11 :50 a.m. after completing a sentence on a

third degree assault conviction. One condition of that judgment and sentence was that he

was to have no contact with his brother, Gumaro Beltran Santos.
No.30004-8-II1
State v. Beltran


       The two corrections officers, accompanied by three officers from the Quincy

Police Department, performed a home visit in Quincy the day following his release. Mr.

Beltran answered the door and admitted to the officers that his brother was inside the

residence. The community corrections officers advised Mr. Beltran he was under arrest

for violating the no contact order. A fight ensued.

       Mr. Beltran was charged with two counts of third degree assault of the corrections

officers, felony harassment, resisting arrest, and violation ofthe no contact order. The

prosecutor also sought an exceptional sentence on the felony offenses due to rapid

recidivism. The harassment charge was dismissed during trial. The jury convicted on

one oftwo counts of custodial assault and acquitted on the other count. The jury also

found Mr. Beltran guilty of resisting arrest and violating the no contact order. The jury

also unanimously returned a special verdict that found that the custodial assault had been

committed shortly after release from incarceration.

       The trial court sentenced Mr. Beltran on the custodial assault count to the top end

of the standard range, 12 months, and imposed an additional 12 months due to the rapid

recidivism finding. The other counts received lesser concurrent sentences. Mr. Beltran

timely appealed to this court.




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No. 30004-8-III
State v. Beltran


                                        ANALYSIS

       Both of Mr. Beltran's issues attack the 24-month sentence for custodial assault due

to the rapid recidivism finding. In particular, he argues- that the aggravating factor is

unconstitutionally vague and that the jury was erroneously instructed on the need to reach

unanimity on the special verdict.

       RCW 9.94A.535(3)(t) provides that it is an aggravating factor that "[t]he

defendant committed the current offense shortly after being released from incarceration."

Mr. Beltran argues that the words "shortly after" give insufficient notice and are therefore

vague. This court has previously rejected this argument.

       A statute is unconstitutionally vague if (1) it does not define the offense with

sufficient definiteness so that ordinary people can understand what conduct is prohibited,

or (2) it does not provide ascertainable standards of guilt to protect against arbitrary

enforcement. City o/Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990).

The reviewing court presumes that a statute is constitutional, and the party challenging

the statute's constitutionality bears the burden of proving the statute's invalidity beyond a

reasonable doubt. City o/Seattle v. Eze, 111 Wn.2d 22,26, 759 P.2d 366 (1988).

       This court most recently considered RCW 9.94A.535(3)(t) in State v. Zigan, 166

Wn. App. 597,270 P.3d 625, review denied, 174 Wn.2d 1014 (2012). There the

defendant challenged on vagueness grounds application of the rapid recidivism factor to a


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No.30004-8-II1
State v. Beltran


vehicular homicide which occurred two months after he was released from prison. Id. at

600,603. This court ruled that while the statute requires some subjective evaluation, it

was not unconstitutionally vague. Id. at 605. We concluded that "[n]o reasonable person

could believe that the circumstances presented here constitute anything other' [t]han the

defendant committed the current offense shortly after being released. '" Id. (second

alteration in original) (quoting RCW 9.94A.535(3)(t)).

       Our courts have considered RCW 9.94A.535(3)(t) and the term "shortly after" on

mUltiple occasions. See, e.g., State v. Williams, 159 Wn. App. 298, 320, 244 P.3d 1018

(rejecting vagueness challenge and upholding exceptional sentence where current third

degree assault was committed within 24 hours of release on a prior third degree assault

conviction), review denied, 171 Wn.2d 1025 (2011); State v. Combs, 156 Wn. App. 502,

506, 232 P.3d 1179 (2010) (holding that an eluding offense committed six months after

release from prison was not an offense committed "shortly after being released"); State

v. Saltz, 137 Wn. App. 576, 585, 154 P.3d 282 (2007) (affinning exceptional sentence

where the defendant committed malicious mischief 30 days after release); State v. Butler,

75 Wn. App. 47, 55, 876 P.2d 481 (1994) (upholding exceptional sentence where

defendant committed two offenses on the same day he was released from prison).

       These cases bear out our observation in Combs that "what constitutes a short

period of time" necessarily ''will vary with the circumstances of the crime involved."


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No. 30004-8-111
State v. Beltran


156 Wn. App. at 506. Williams is very close factually to this case. There a third degree

assault committed 24 hours after release from a sentence on another third degree assault

was "shortly after being released." Similarly here, Mr. Beltran's release from custody on

a third degree assault occurred only 30 hours before he committed the similar offense of

custodial assault. As with the Williams court, we agree that the current offense was

committed "shortly after" being released from custody.

       Mr. Beltran has failed to meet his burden to show that RCW 9.94A.535(3)(t) is

void for vagueness. A statute is not unconstitutional merely because it requires a

subjective evaluation. Douglass, 115 Wn.2d at 181. Whether an offense is committed

"shortly after" release is inherently a factual question left to the trier-of-fact. RCW

9.94A.535(3)(t) is not vague as applied here. An ordinary person would believe that

committing any similar new crime within 30 hours of release would be considered

"shortly after" under RCW 9.94A.535(3)(t).

       Mr. Beltran also argues that the trial court erred in requiring the jury to be

unanimous in its special verdict. Subsequent to the filing of the appellant's brief, the

Washington Supreme Court unanimously rejected his argument in State v. Guzman

Nunez, 174 Wn.2d 707, 285 PJd 21 (2012). In light of Guzman Nunez, his argument has

no merit.

       The convictions and sentence are affirmed.


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No.30004-8-II1
State v. Beltran


      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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