STATE v. PARKER, 29773-6-II (Wash.App. 7-15-2003)

No. 29773-6-IIThe Court of Appeals of Washington, Division Two.
Filed: July 15, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Cowlitz County Docket No: 02-8-00447-7 Judgment or order under review Date filed: 09/18/2002

Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.

Counsel for Respondent(s), Susan Irene Baur, Attorney at Law, Hall of Jstc, 312 S.W. 1st Ave, Kelso, WA 98626-1739.

HOUGHTON, J.

Joshua K. Parker appeals his conviction of first degree theft and the disposition above the Juvenile Justice Act standard range.[1] Parker pleaded guilty to the theft, but he now contends there was an insufficient factual basis to support it.[2] We agree and reverse.

A court may not enter judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea. CrR 4.2(d). This requirement protects a defendant from pleading guilty to a charge under the mistaken belief that his conduct fell within that charge. State v. S.M., 100 Wn. App. 401, 414, 996 P.2d 1111 (2000).

The State charged Parker with theft as defined in RCW 9A.56.020(1)(c):

the appropriation of lost or misdelivered property with the intent to deprive the owner of such property. In order to appropriate lost or misdelivered property, a person must obtain or exert control over it. RCW 9A.56.010(2). It appears from the record that the only evidence reviewed by the trial court before it accepted Parker’s plea were his oral and written statements.[3] In his statement on plea of guilty, Parker wrote: `On July 13, 2002 I did get into a vehicle knowing that the vehicle was stolen. When the car was stopped I did flee from the police and did try to avoid being arrested. This happened in Cowlitz County, Wash.’ Clerk’s Papers at 12. At the disposition hearing, the court asked Parker to describe what he did that made him guilty of first degree theft, and the following colloquy occurred:
THE DEFENDANT: Well, I got into the car, knowing that it was stolen, and I —
THE COURT: So, you rode in a car that you knew was stolen?
THE DEFENDANT: And I outran him and resisted arrest.
THE COURT: All right. So, you knew when you were riding in the car that you knew that it was stolen?
THE DEFENDANT: Um-hum.

Report of Proceedings (August 16, 2002, 1:10 p.m.) at 8.

Evidence that shows no more than the defendant’s presence in the car as a passenger is insufficient to show that he exerted control over the car. See State v. Plank, 46 Wn. App. 728, 733, 731 P.2d 1170 (1987) (reversing a conviction of second degree possession of stolen property). Here, insufficient evidence supports the State’s claim that Parker exerted control over the vehicle. That is all there is here.

We reverse and conviction and remand.[4]

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

MORGAN and BRIDGEWATER, JJ., concur.