STATE v. WALKER, 23 Wn. App. 618 (1979)

597 P.2d 453

THE STATE OF WASHINGTON, Respondent, v. SHEPHERD LEE WALKER, Appellant.

No. 2751-3.The Court of Appeals of Washington, Division Three.
June 26, 1979.

[1] Robbery — Use of Firearm — Effect on Punishment — Statutory Provisions. RCW 9.41.025, which increases the penalty when a crime is committed with a firearm, does not apply to first-degree robbery under RCW 9A.56.200, which makes being armed with a deadly weapon an element of the crime, but RCW 9.95.040, which restricts the parole eligibility of a person committing a felony while armed, is applicable to a defendant convicted of first-degree robbery.

[2] Criminal Law — Punishment — Discretion of Prosecutor — In General. A defendant’s equal protection rights are not violated by the discretion of a prosecutor to invoke statutes imposing a greater penalty or restricting parole rights for a particular crime if the prosecutor’s decision is not arbitrary, capricious, or based on unjustifiable standards.

Nature of Action: The defendant was charged with first-degree robbery while armed with a firearm. The State sought to invoke enhanced punishment provisions for the use of a firearm.

Superior Court: The Superior Court for Spokane County, No. 25785, William J. Grant, J., on December 20, 1978, entered a judgment which included the enhanced punishment provisions.

Court of Appeals: Holding that the enhanced punishment provisions were not applicable but that the restrictions upon parole were applicable to the offense, the court reverses that part of the judgment providing for enhanced punishment an remands for resentencing.

Richard L. Cease, Public Defender, and Richard F. Ayres, Jr., Deputy, for appellant.

Donald C. Brockett, Prosecuting Attorney, and Gregory G. Staeheli, Deputy, for respondent.

MUNSON, J.

Shepherd Lee Walker appeals from the denial of his motion to strike so much of a first-degree

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robbery information which alleged he was armed with a deadly weapon and firearm under the provisions of RCW 9.95.040[1] and RCW 9.41.025,[2] respectively.

Mr. Walker contends the first-degree robbery statute, RCW 9A.56.200(1),[3] has superseded the enhanced penalty provisions of the deadly weapon and firearm statutes insofar as they pertain to that crime. He asks that we reverse and remand the cause for a new trial upon an information alleging the crime of first-degree robbery without the allegations of violations of the enhanced penalty statutes.

[1] Subsequent to the trial court’s ruling in this matter State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978), held that the enhanced penalty provision of RCW 9.41.025 cannot be applied to first-degree robbery cases because the legislature has provided for an appropriately enhanced penalty for that crime. Nonetheless, the application of RCW 9.95.040, which is addressed to the parole board, restricting its power to parole a person convicted of a commission of a felony while armed with a deadly weapon, was specifically approved in first-degree robbery cases State v. Workman, supra at 455. Therefore, the court erred only in denying the motion to strike the allegation concerning RCW 9.41.025. Cf. State v. Foster, 91 Wn.2d 466, 477, 589 P.2d 789
(1979); State v. Caldwell, 23 Wn. App. 8, 11, 591 P.2d 849
(1979).

[2] We note Mr. Walker also challenges the application of the enhanced penalty statutes on the ground that the

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prosecutor’s discretion to seek varying degrees of punishment for the crime of first-degree robbery violates his right to equal protection of the laws. In State v. Workman, supra at 456, the court rejected a similar argument, saying:

[W]here the particular circumstances of the case merit, the State may seek to restrict an individual’s parole possibilities, or enhance a penalty not already increased by statute. Where such selective enforcement of criminal statutes is not arbitrary, capricious or based on unjustifiable standards it does not deny equal protection.

The prosecutor argues that strict application of the Workman
rule could allow the court to grant an armed robber probation, yet require the court to sentence a misdemeanant defendant, who was armed, to at least 5 years in a state penal institution.[4]
The argument would be more persuasive had not the legislature repealed every misdemeanor or gross misdemeanor categorized as “inherently dangerous” in RCW 9.41.025(4), either changing the definition of the crime or its classification, in some instances to a felony.[5] We note, without passing upon the question, that it is doubtful whether any of the present misdemeanors or

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gross misdemeanors so categorized in RCW 9.41.025(4) would be subject to the enhanced penalty set forth in that statute in view of the repeal and/or reclassification of the crimes named therein.[6] In light of Workman and the passage of the Washington Criminal Code, effective July 1, 1976, if the legislature desires to attach an enhanced penalty to designated misdemeanors or gross misdemeanors, it would appear that RCW 9.41.025(4) needs further legislative attention.[7]

The judgment of the Superior Court is reversed insofar as it denied the motion to strike from the information the allegation of a violation of RCW 9.41.025. Therefore, this matter is remanded for resentencing in accordance with State v. Workman, supra.

GREEN, C.J., and McINTURFF, J., concur.

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