Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                           )       No. 29553-2-III
                                               )
                             Respondent,       )
                                               )
                      v.                       )       Division Three
                                               )
DOROTEO VILLANO,                               )
                                               )       OPINION PUBLISHED
                             Appellant.        )           IN PART

       Korsmo, J.  --  The juvenile court imposed a condition that Doroteo Villano not 

possess any "gang paraphernalia." We conclude that condition is unconstitutionally

vague and strike it.  The conviction for first degree arson is affirmed.

       After convicting Mr. Villano of first degree arson, the juvenile court committed 

him to the Juvenile Rehabilitation Administration for a period of 103-129 weeks. The 

disposition order also imposed the following condition of post-release supervision:

       Gang conditions: subject to personal search upon reasonable suspicion of a 
       probation violation; no contact with known gang members; no possession of 
       gang paraphernalia; no possession of knives or other weapons. 

No. 29553-2-III
State v. Villano

Clerk's Papers (CP) at 9.

       Mr. Villano timely appealed to this court, challenging the sufficiency of the 

evidence to support the conviction as well as the gang paraphernalia restriction.  We 

address the evidentiary sufficiency challenge (and the facts underlying the charge) in the 

unpublished portion of this opinion.

       Sentencing conditions must adequately inform the offender of what conduct they 

either require or proscribe; failure to provide sufficient clarity runs afoul of the due 

process protection against vagueness.  State v. Sanchez Valencia, 169 Wn.2d 782, 791, 

239 P.2d 1059 (2010); State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008).

       Both parties agree that the sentencing condition is unconstitutionally vague.  So do 

we.  In Sanchez Valencia, the court addressed a sentencing condition that prohibited 

possession of "any paraphernalia" used to ingest, process, or facilitate the sale of 

controlled substances.  169 Wn.2d at 785.  The court unanimously concluded that the 

provision was vague because it failed to provide fair notice to the defendants and also 

failed to prevent arbitrary enforcement.  Id. at 794-795.

       The phrase "gang paraphernalia" used in a check-box paragraph on the standard 

disposition order here is even vaguer than the condition rejected in Sanchez Valencia, 

which at least referenced controlled substance usage.  There is no similar limitation in 

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No. 29553-2-III
State v. Villano

this case.  There is no definition of what constitutes "gang paraphernalia."  In the 

common experience of this court, popular clothing items or specific colored items are 

frequently described as gang attire.  If the trial court intended to prohibit the wearing of 

bandanas or particular colored shoes, it needed to provide clear notice to Mr. Villano 

about what he could not possess.  This provision does not do that.  It is unconstitutionally 

vague.  Id. at 795.

       The parties both request that the condition be stricken.  We remand to the juvenile 

court with directions to strike the gang paraphernalia restriction.

       A majority of the panel having determined that only the forgoing portion of this 

opinion will be printed in the Washington Appellate Reports and that the remainder shall 

be filed for public record pursuant to RCW 2.06.040, it is so ordered.
       The remaining issue is whether the evidence supported the bench verdict.1 We 

conclude that there was sufficient evidence to support the verdict.

       Mr. Villano's challenge is targeted at the evidence identifying him as an actor in 

this crime.  We review sufficiency challenges to see if there was evidence from which the 

trier-of-fact could find each element of the offense proven beyond a reasonable doubt.  

       1 Appellant also challenged the failure to have the mandatory adjudicatory hearing 
findings entered in a timely manner. JuCR 7.11(d). The findings were ultimately entered 
at this court's direction.  We were advised at oral argument that they were no longer at 
issue.  We will not further address the topic.
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No. 29553-2-III
State v. Villano

Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. 

Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980).  We must consider the evidence in 

a light most favorable to the prosecution.  Id.

       Mr. Villano and a companion, who was tried as an adult, were observed walking 

through a Pasco neighborhood late on a Saturday evening.  One of the two men threw a 

molotov cocktail (a bottle containing gasoline and a lit fuse) at a house, striking the 

window.  The two then ran to a parked car and drove away. One of occupants of the 

house trailed them in his own car until a Franklin County Sheriff's Deputy stopped the 

vehicle.  Mr. Villano was the passenger in the car.  Captain Russ Akers of the sheriff's 

office patted Mr. Villano down and testified that he smelled a faint odor of gasoline on 

the young man.  

       Captain Akers subsequently obtained Mr. Villano's clothing, placed it in paper 

bags, and subsequently transported the bags in the rear of his car.  He reported that the 

bags emitted a "very strong odor of gasoline" while in the car.  The clothing was 

transferred to special arson bags, which are designed to prevent the evaporation of 

volatile chemicals, on Monday morning.  

       No fingerprints were recovered from the gasoline bottle.  Technicians from the 

crime laboratory did not find any ignitable liquids on Mr. Villano's clothing; the only 

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No. 29553-2-III
State v. Villano

measurable quantity of gasoline discovered was a residue amount on the co-defendant's 

tennis shoes.  The technician testified that gasoline could have evaporated from the 

clothing prior to the transfer to the arson bags.  

       Mr. Villano did not testify.  His counsel argued that the co-defendant was the 

person who committed arson.  The trial judge concluded that there was sufficient direct 

and circumstantial evidence to find Mr. Villano guilty beyond a reasonable doubt.  The 

court's oral remarks particularly noted the gasoline smell on his clothing and the joint 

flight from the scene.

       Other than the identity of the actor, the elements of first degree arson are not at 

issue in this appeal.  No one identified which of the two men threw the bottle.  The 

question, then, becomes whether there was sufficient evidence that they were working in 

concert.  An accomplice is someone who aids another in the commission of the crime.  

RCW 9A.08.020(3)(a)(ii).  The theory of accomplice liability need not be included in the 

charging document because it is the same as direct liability.  State v. Carothers, 84 

Wn.2d 256, 262, 525 P.2d 731 (1974).  A jury must be instructed on accomplice liability 

before it can return a verdict on that theory.  State v. Davenport, 100 Wn.2d 757, 764-

765, 675 P.2d 1213 (1984).  However, we presume that judges know the law and will 

apply it appropriately.  In re Welfare of Harbert, 85 Wn.2d 719, 729, 538 P.2d 1212 

                                               5 

No. 29553-2-III
State v. Villano

(1975).

       As summed up in Carothers: 

       The law is settled in this jurisdiction that a verdict may be sustained upon 
       evidence that the defendant participated in the commission of the crime 
       charged, as an aider or abettor, even though he was not expressly accused 
       of aiding and abetting and even though he was the only person charged in 
       the information. . . .  [E]very person concerned in the commission of a 
       felony, whether he directly commits the act constituting the offense or aids 
       and abets in its commission, is a principal and shall be proceeded against 
       and punished as such.

84 Wn.2d at 260-261 (citations omitted).

       Did the evidence support the trial court's view that Mr. Villano was an active 

participant in this offense?  Appellant cites authority noting that mere presence at the 

scene of a crime is insufficient to support criminal liability.  However, this case presents 

more than mere presence.  Whether or not Mr. Villano actually pitched the incendiary 

device, the evidence suggests he was a participant in its creation and delivery.  His 

clothing smelled of gasoline, suggesting that he used the product that evening.  He fled 

the scene in a waiting automobile.  There would have been little reason to flee if he had 

not been involved in the arson.  Also, there appears to have been no reason for him to be 

in the neighborhood except to commit the crime, and his immediate flight is therefore 

particularly telling.  This was not the situation where two young men were out for a stroll 

                                               6 

No. 29553-2-III
State v. Villano

and one of them suddenly and unexpectedly committed a crime.  Rather, the evidence 

permitted the trial judge to conclude that the two jointly drove to the neighborhood and

got out of their car and walked up to the target house.  One of them then threw the fire 

bomb and both fled back to their vehicle.

       We believe the evidence allowed the trier-of-fact to conclude the men were joint 

participants in this crime.  The evidence was thus sufficient to support the conviction.

       The adjudication is affirmed.  The case is remanded with directions to strike the 

gang paraphernalia prohibition.

                                            _________________________________
                                                           Korsmo, J.

WE CONCUR:

______________________________
       Kulik, C.J.

______________________________
       Siddoway, J.

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