Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 65537-0-I
                      Respondent,           )
                                            )       DIVISION ONE
              v.                            )
                                            )       UNPUBLISHED OPINION
BAO DINH DANG,                              )
                                            ) 
                      Appellant.            )       FILED: March 12, 2012

       Grosse, J.  --  A trial court may revoke the conditional release of a person 

acquitted of a crime by reason of insanity if the court determines that the person did not 

adhere to the terms or conditions of his or her release or that the person presents a 

threat to public safety.  Here, the trial court revoked Bao Dinh Dang's conditional 

release based on its determination that Dang violated a condition of his release.  Given 

this determination, the trial court was not required to find that Dang was a substantial 

danger to other persons or presented a substantial likelihood of committing criminal 

acts jeopardizing public safety and security.  Accordingly, we affirm the order revoking 

Dang's conditional release.

       In April 2007, Bao Dinh Dang was acquitted on grounds of insanity of one count 

of first degree attempted arson.  The court entered a judgment of acquittal by reason of 

insanity pursuant to RCW 10.77.080 and conditionally released Dang from custody.  

Among the conditions for Dang's release was that he "shall be in a state of remission 

from the effects of mental disease or defect and have no significant deterioration of 

mental condition or other significant sign of decompensation."            Other conditions of 

Dang's release included that he be supervised by the Department of Corrections (DOC)  

No. 65537-0-I / 2

and report as directed to a Community Corrections Officer (CCO).

       In June 2007, the trial court entered an order modifying the conditions of Dang's 

release to include a requirement that his CCO submit reports as to his progress in 

treatment, any substantial change in treatment plan, and any substantial change in or 

significant deterioration of his condition.  In the order, the court also allowed the CCO 

to order that Dang be apprehended and taken into custody for hospitalization and 

evaluation if the CCO reasonably believed Dang was failing to adhere to the conditions 

of his release and because of that failure may become a substantial danger to other 

persons or present a substantial likelihood of committing criminal acts jeopardizing 

public safety or security.

       In January 2008, the court again modified the conditions of Dang's release.  The 

court removed the requirement of DOC supervision and also allowed Dang to reside 

with his sister.

       In April 2008, the court modified the conditions of Dang's release once again.  

The court reimposed the requirement of DOC supervision and again ordered that Dang 

report as directed to a CCO.  The court also reimposed the condition that Dang "[b]e in 

a state of remission from the effects of mental disease or defect and have no significant 

deterioration of mental condition or other significant sign of decompensation."             The 

court again authorized the CCO to order Dang apprehended and taken into custody for 

hospitalization and evaluation under the same circumstances as previously ordered.

       In July 2008, the court entered an order permitting Dang to travel to Vietnam 

from July 3, 2008 to no later than August 3, 2008.

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No. 65537-0-I / 3

       In late August 2008, the State sought a bench warrant for Dang's arrest on the 

ground that he violated the terms and conditions of his release by exhibiting significant 

signs of decompensation since August 5, 2008.  The court granted the State's motion 

and entered an order directing the issuance of a bench warrant and requiring that Dang 

be transported to Western State Hospital for evaluation and treatment pending a 

hearing on revocation or modification of his conditional release.  Dang's CCO arrested 

Dang and took him to Western State Hospital.

       In May 2010, the State moved for revocation of Dang's conditional release, 

alleging that Dang violated the terms and conditions of his release and needed further 

treatment and that his continued release without further inpatient treatment was a threat 

to the public.  After a hearing, the trial court entered an order revoking Dang's 

conditional release pursuant to RCW          10.77.190 and ordering Dang committed for 

hospitalization and treatment.  For reasons unknown, the court's findings of fact and 

conclusions of law were not filed in the trial court following the hearing.  Because the 

judge who presided at the revocation proceedings had since retired, the parties 

presented agreed findings of fact and conclusions of law to the presiding criminal 

judge.  The presiding criminal judge noted on the findings of fact and conclusions of law 

that they accurately reflected the prior judge's oral ruling.  The State filed the findings 
of fact and conclusions of law in this court.1

       Dang appeals the order revoking his conditional release on several grounds.  

First, he argues that the revocation of his conditional release deprived him of due 

1 We deny Dang's motion to strike and grant the State's motion to supplement the 
record pursuant to RAP 9.11.

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No. 65537-0-I / 4

process of law because, in ordering revocation, the trial court did not make a specific 

finding that Dang was a substantial danger to other persons or presented a substantial 

likelihood of committing criminal acts jeopardizing public safety and security.  But the 

statute pursuant to which the trial court revoked Dang's conditional release, RCW 

10.77.190, does not require such a finding:

       The court, upon receiving notification of the apprehension [of the 
       conditionally released person believed to be failing to adhere to the terms 
       or conditions of his or her conditional release], shall promptly schedule a 
       hearing.  The issue to be determined is whether the conditionally released 
       person did or did not adhere to the terms and conditions of his or her 
       release, or whether the person presents a threat to public safety.  
       Pursuant to the determination of the court upon such hearing, the 
       conditionally released person shall either continue to be conditionally 
       released on the same or modified conditions or his or her conditional 
       release shall be revoked and he or she shall be committed subject to 
       release only in accordance with the provisions of [chapter 10.77 RCW].[2]

       The statute plainly allows revocation of a conditional release upon a 

determination either that Dang did not adhere to the terms and conditions of his release 

or that he presented a threat to public safety.  Given that the trial court found that Dang 

did not adhere to the terms and conditions of his release, revocation of his conditional 

release based on that finding alone was proper.  Moreover, we note that the trial court 
did in fact make a finding as to dangerousness.3

       Next, Dang argues that if proof of dangerousness is not a prerequisite to the 

revocation of a conditional release pursuant to RCW 10.77.190, then the statute is 

2 RCW 10.77.190(4) (emphasis added).  In arguing that the trial court was required to 
enter a finding of dangerousness, Dang ignores RCW 10.77.190 and erroneously relies 
on other statutes instead.  These statutes are not, however, relevant to a proceeding to 
modify or revoke a conditional release.  
3 Conclusion of Law No. 5 provides: "The defendant cannot be conditionally released 
without presenting a substantial danger to other persons, and he presents a substantial 
likelihood of committing criminal acts jeopardizing public safety and security."  

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No. 65537-0-I / 5

unconstitutional.  A statute is presumed constitutional, and the party challenging the 

constitutionality of a statute has the burden of proving its unconstitutionality beyond a 
reasonable doubt.4      Where possible, we must interpret a challenged statute in a 

manner that upholds its constitutionality.5       The presumption in favor of a statute's 

constitutionality should be overcome only in exceptional cases.6

       Here, Dang has failed to prove the unconstitutionality of RCW 10.77.190 beyond 

a reasonable doubt.  Indeed, he fails to cite any authority involving the revocation of a 

conditional release, and instead relies on statutes and cases involving other 

determinations and proceedings.  Dang fails to meet his heavy burden of proving that 

RCW 10.77.190 is unconstitutional.

       Dang raises several arguments relating to the hearing on the State's motion to 

revoke his conditional release.  He argues that the standard of proof at the hearing 

should have been clear and convincing evidence, rather than a preponderance of the 

evidence as the trial court concluded.  RCW 10.77.190 is silent as to the standard of 

proof required to revoke a conditional release.  To resolve the issue of the burden of 

proof, we look not only to the text of the statute, but also to related provisions as well as 
the statutory scheme as a whole.7        The relevant statutory scheme is chapter 10.77 

RCW.8    The preponderance of the evidence standard is the appropriate standard for a 

4 Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 739, 818 P.2d 1062 (1991).
5 City of Seattle v. Webster, 115 Wn.2d 635, 641, 802 P.2d 1333 (1990).
6 City of Seattle v. Eze, 111 Wn.2d 22, 28, 759 P.2d 366 (1988).
7 State v. Hurst, No. 85549-8, 2012 WL 243675, at *3 (Wash. Jan. 26, 2012).
8 Hurst, 2012 WL 243675, at *3 ("Provisions addressing defendants who are not 
competent to stand trial are set forth in chapter 10.77 RCW.")  We reject Dang's 
argument that the standard of proof set forth in MPR 4.5 applies here.  By its explicit 
terms, that standard applies to conditional releases and less restrictive treatment under 
RCW 71.05.340  and RCW 71.05.320, respectively, not proceedings under chapter 

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No. 65537-0-I / 6

number of determinations under provisions of chapter 10.77 RCW.9                  Had the legislature 

intended to impose the more stringent clear and convincing evidence standard for 
proceedings to revoke a conditional release, it knew how to do so.10        The trial court did 

not err in applying the preponderance of the evidence standard.  Further, we agree with 

the trial court that even under a stricter standard of proof, revocation of Dang's 
conditional release was proper.11

       Next, Dang argues that the evidence was insufficient to prove that he was 

dangerous under any standard of proof and that, therefore, "the order committing him"

must be vacated.  But the order committing Dang is not at issue.  The order on appeal 

is the order revoking Dang's conditional release.  The issue to be determined at the 

hearing on a petition to revoke a conditional release is "whether the conditionally 

released person did or did not adhere to the terms and conditions of his or her release, 
or whether the person presents a threat to public safety."12      Here, Dang's CCO alleged 

that Dang violated the condition of his release that he exhibit no significant signs of 

decompensation, and the trial court did not err in finding such violation.  The issue at 

10.77 RCW.
9 See e.g., RCW 10.77.086(3) (determining competency at the hearing following the 
first mental health treatment and restoration period); RCW                 10.77.200(3) (final 
discharge proceedings); State v. Paul, 64 Wn. App. 801, 805, 828 P.2d 594 (1992) 
(holding that the standard for determining a petition for conditional release is the 
preponderance of the evidence standard); Hurst, 2012 WL 243675, at *3 (holding that 
the standard of proof required to commit an incompetent criminal defendant charged 
with a felony to a      third mental health treatment and restoration period is the 
preponderance of the evidence standard).
10 See Hurst, 2012 WL 243675, at *3.
11 The trial court stated that "[f]or purposes of this case the standard of proof is largely 
academic because the proof here is very strong that the conditional release should be 
revoked."  
12 RCW 10.77.190(4).

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No. 65537-0-I / 7

the hearing was not whether the State proved Dang's dangerousness.  Dang's 

argument that the evidence was insufficient to show he was dangerous is, therefore, 

not relevant to whether the trial court properly revoked his conditional release.

       Dang argues that the trial court denied him his due process right to confrontation 

by admitting hearsay evidence at the hearing on the State's motion to revoke his 

conditional release.  "[T]he due process rights afforded at a revocation hearing are not 
the same as those afforded at the time of trial."13     For example, in a parole revocation 

proceeding, the level of process due is flexible and allows for the admission of 

evidence that would not be admitted in an adversary criminal trial, such as letters and 
affidavits.14 Similarly, sex offenders who face the revocation of a Special Sex Offender 

Sentencing Alternative (SSOSA) sentence are entitled to only those minimal due 
process rights afforded in a parole revocation proceeding.15          Reports, affidavits, and 

documentary evidence are admissible in those proceedings if there is good cause to 
forego live testimony.16

       Here, Dang objected to the testimony of Dang's case manager and of his CCO 

that Dang told others that he was going to set something on fire or blow up a gas 

station.  The court overruled Dang's objections to this testimony, reasoning that the 

testimony was based on each witness's familiarity with the case and, although hearsay, 

was "admissible in hearings of this nature."      The trial court's allowance of hearsay at 

the hearing is not the same as the admission of reports, affidavits, and documentary 

13 State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999).
14 State v. Abd-Rahmaan, 154 Wn.2d 280, 286, 111 P.3d 1157 (2005).
15 State v. Badger, 64 Wn. App. 904, 907, 827 P.2d 318 (1992).
16 Dahl, 139 Wn.2d at 686.

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No. 65537-0-I / 8

evidence in lieu of live testimony.  Thus, the requirement of good cause for the admissibility of 

reports, affidavits, and documentary evidence in lieu of live testimony outlined in Dahl17 and 

Abd-Rahmaan18 is not applicable here.  Dang was afforded the due process rights to 

which he was entitled at the hearing.19

       We affirm the order revoking Dang's conditional release.

WE CONCUR:

17 139 Wn.2d 678, 683, 990 P.2d 396 (1999).
18 154 Wn.2d 280, 286, 111 P.3d 1157 (2005).
19 Because we affirm the trial court's order revoking Dang's conditional release, we 
need not and do not address his argument that if the matter is remanded for a hearing, 
the trial court should be barred from considering hearsay.

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