The State of Washington, Respondent, v. Antonio B. Cantu, Petitioner, 156 Wash. 2d 819

fl Seventeen-year old Antonio B. Cantu was convicted of residential burglary following allegations he entered his mother’s home, broke into her deadbolt-locked bedroom door, and took some of her possessions. We are again asked to interpret a statute that could be construed to impermissibly shift the burden of persuasion to the accused and relieve the State of its obligation to prove each element of the crime. Chambers, J. ¶2 We held in State v. Deal, 128 Wn.2d 693, 699-700, 911 P.2d 996 (1996) (citing State v.

Brunson, 128 Wn.2d 98, 107, 905 P.2d 346 (1995)), that, under certain circumstances, RCW 9A.52.040 creates a permissive, rather than a mandatory, presumption of criminal intent. A permissive presumption permits, but does not require, an inference of criminal intent, while a mandatory presumption mandates such inference unless it is rebutted. Permissive presumptions do not necessarily deprive the State of its obligation to prove every element of the crime, and thus the statute is not facially invalid. However, in this case we cannot say that the State bore the burden of proving every element of the crime charged.

The record suggests that the court improperly applied a mandatory presumption of criminal intent. We also hold that a child’s privilege to enter the family home, or any portion inside, may be expressly or impliedly limited. We reverse, vacate the conviction, and remand for proceedings consistent with this opinion. I FACTS f 3 Cantu’s mother, Noyola Moneada, lives in Moses Lake with her boyfriend and daughter, Sophia. One morning in February 2003, Corporal Steven Miers of the Moses Lake Police Department responded to a call from the home.

Sophia told Miers that Cantu had just left after breaking into their mother’s bedroom by kicking in the dead-bolt-locked door. Miers saw damage to the bedroom door consistent with Sophia’s account. Sophia also reported to Miers that Cantu had taken items, including his own alarm clock, out of their mother’s bedroom. Shortly afterward, Moneada came home and told Miers that money, beer, and pain pills had been taken from her bedroom.

Moneada testified that at the time of the incident, Cantu was not living with her, did not have her permission to enter her bedroom, and that the missing beer, money, and pills were returned by Mon-cada’s nephew later that same day. ¶4 Cantu testified that he went to his mother’s home on February 6, 2003, to pick up some clothes. Cantu explained that while he was inside the house and playing with his dogs, he ran into his mother’s bedroom door and accidentally broke the door.

Cantu asserted he entered his mother’s bedroom only to shut the door and did not remove anything. ¶5 Cantu was charged by information with one count each of residential burglary, theft in the third degree, minor in possession of alcohol, and possession of a legend drug. The court found Cantu guilty of residential burglary but found insufficient evidence existed as to the other three counts. The Court of Appeals affirmed. State v. Cantu, 123 Wn. App. 404, 98 P.3d 106 (2004). Cantu’s petition to this court for review was granted. State v. Cantu, 154 Wn.2d 1002, 113 P.3d 481 (2005).

II UNLAWFUL ENTRY ¶6 First, we must decide whether a license to enter a dwelling may be impliedly limited. This is a question of law reviewed de novo. State v. Hanson, 151 Wn.2d 783, 784, 91 P.3d 888 (2004). Cantu argues that implied limitations are not enough; that his mother did not expressly prohibit him from entering her bedroom, and that the dead-bolt-locked door did not give him sufficient notice. For support, Cantu cites State v. Steinbach, 101 Wn.2d 460, 463, 679 P.2d 369 (1984); State v. Crist, 80 Wn. App. 511, 514-15, 909 P.2d 1341 (1996); and State v. Jensen, 57 Wn. App. 501, 506, 789 P.2d 772 (1990).

The State argues that express limits are not required and that the locked dead bolt was sufficient. We agree with the State. ¶7 As part of its proof of residential burglary, the State bore the burden of showing that Cantu entered and remained unlawfully in Moncada’s home with the intent to commit a crime against a person or property. RCW 9A-.52.025(1). A person “enters or remains unlawfully” when he is not licensed, invited, or otherwise privileged to enter or remain on the premises. RCW 9A.52.010(3). ¶8 A juvenile is presumed to have a license to enter his parents’ home. Steinbach, 101 Wn.2d at 462-63.

Because Cantu was 17 years old at the time, we will presume he had a license to enter Moncada’s home. However, even though Cantu may have had a license to be in the home, an unprivileged entry into a locked room may still constitute unlawful entry for purposes of burglary. Crist, 80 Wn. App. at 514-15; see generally State v. Collins, 110 Wn.2d 253, 751 P.2d 837 (1988). ¶9 In Crist, Division Two of the Court of Appeals found a juvenile unlawfully entered his father’s locked room when the juvenile had a license to enter certain parts of the home but was expressly told that he was not to enter his father’s room.

Crist, 80 Wn. App. at 513-16. In Jensen, Division One of the Court of Appeals found that there was substantial evidence to support the trial court’s finding that a juvenile did not have permission to enter his parents’ home in their absence when his parents “ ‘made it very clear that they did not want him in the home unattended.’ ” Jensen, 57 Wn. App. at 506 (quoting finding of fact). In Steinbach, this court found that a juvenile’s entry into her mother’s home was not unlawful since neither the mother nor the alternative residential placement orders absolutely prohibited the juvenile from being in the home.

Steinbach, 101 Wn.2d at 462-64. ¶10 While Cantu is correct that Crist, Jensen, and Steinbach all involved some sort of express limits, no Washington court has held that to find an unlawful entry, express limits on the juvenile must exist. The Crist court explained that the privilege could be limited either expressly or impliedly. Crist, 80 Wn. App. at 515. We agree and hold that a child’s license to enter the family home, or any room within, may be limited expressly or by clear implication.

Since Moncada’s locked bedroom door gave Cantu clear implied notice that any permission to enter the home did not extend to her bedroom, there was sufficient evidence to find an unlawful entry. We find no error. Ill MANDATORY V. PERMISSIVE INFERENCES ¶[11 Basic principles of due process require the State to prove every essential element of a crime beyond a reasonable doubt. Deal, 128 Wn.2d at 698 (quoting State v. Hanna, 123 Wn.2d 704, 710, 871 P.2d 135 (1994)). Thus, the State bore the burden of proving every element of burglary, including criminal intent.

Cantu contends that the trial judge employed an impermissible mandatory presumption, shifting the burden of persuasion to Cantu to show lack of criminal intent. “The burden of persuasion is deemed to be shifted if the trier of fact is required to draw a certain inference upon the failure of the defendant to prove by some quantum of evidence that the inference should not be drawn.” Deal, 128 Wn.2d at 701 (citing Sandstrom v. Montana, 442 U.S. 510, 517, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)).

Cantu maintains that the Court of Appeals impermissibly applied a mandatory presumption in this case when it held: “the defense offered no evidence to rebut the statutory inference of [criminal] intent.” Cantu, 123 Wn. App. at 410 (first emphasis added). ¶12 The State may use evidentiary devices, such as presumptions and inferences, to assist it in meeting its burden of proof, though they are not favored in criminal law. Hanna, 123 Wn.2d at 710; Sandstrom, 442 U.S. at 523-24.

We have previously approved the permissive inference of intent to commit a crime “whenever the evidence shows a person enters or remains unlawfully in a building.” State v. Grimes, 92 Wn. App. 973, 980 n.2, 966 P.2d 394 (1998) (citing Brunson, 128 Wn.2d at 107); see also Deal, 128 Wn.2d at 699-700.

The permissible inference of criminal intent is found in RCW 9A.52.040. ¶13 The statute provides that: In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent. RCW 9A.52.040 (emphasis added).

Again, “when permissive inferences are only part of the State’s proof supporting an element and not the ‘sole and sufficient’ proof of such element, due process is not offended if the prosecution shows that the inference more likely than not flows from the proven fact.” Deal, 128 Wn.2d at 700 (citing Brunson, 128 Wn.2d at 107). ¶14 However, mandatory presumptions are more troubling.

While RCW 9A.52.040 contains a constitutionally valid permissive inference, it may also be read to unconstitutionally shift the burden of persuasion to the defendant, as it did when the jury instructions included the specific statutory language, “ ‘unless such entering or remaining shall be explained by evidence satisfactory to the jury to have been made without such criminal intent.’ ” Deal, 128 Wn.2d at 704; see RCW 9A.52.040.

We held the inclusion of this language, “essentially requirfed] the Defendant to either introduce evidence sufficient to rebut the inference that he remained on the premises with intent to commit a crime, or concede that element of the crime.” Deal, 128 Wn.2d at 701; see also RCW 9A.52.040. “In other words, a reasonable juror could have concluded that once [the defendant’s] presence on the premises was shown, a finding that he intended to commit a crime was compelled, absent a satisfactory explanation by [the defendant] as to why he was on the premises.” Deal, 128 Wn.2d at 701. ¶[15 In this case, while the record is not conclusive, it appears to us that the court applied a mandatory presumption to find Cantu’s intent was criminal.

We note in passing that the text of RCW 9A.52.040 is unfortunate and, as we explained in Deal, can be misleading. Deal, 128 Wn.2d at 702. In his own words, the trial judge seemed to have found Cantu’s intent criminal on the belief that Cantu was unable to provide sufficient evidence to rebut the presumption. Statements made by the prosecutor and the judge near the close of the trial support our conclusion that the trial court improperly placed the burden on Cantu to prove his innocence — instead of the State having to prove his guilt.

For instance, in discussing the statutory inference provided in RCW 9A.52.040, the prosecutor initially stated, “[RCW] 9A-.52.040, and burglary is unique ... a person [who] enters or remains unlawfully in a building, and [in this case], in the bedroom, may be inferred to have acted with [criminal] intent. And then the burden actually shifts [to Cantu] to show evidence satisfactory that the entry was made without such criminal intent.” Report of Proceedings (RP) at 69.

Subsequently, the prosecutor corrected herself, saying, “[the] [i]nference of an intent to commit a crim[inal] act from [an] unlawful entry is not shifting the burden because the inference is permissible, not mandatory.” RP at 71. However, the prosecutor continued stating, “[s]o, um, it’s [a] permissible inference that the court can find that an illegal entry should have some explanation to it. And [Cantu’s] explanation at this point in time is lame, Your Honor.” Id.

In addition, in the trial court’s oral decision, the judge stated, “The assessment, first off [is that Cantu] broke into his mother’s bedroom and he was not living there, [and] did not have permission to be there and [that] he kicked ... in and ruined the door in [gaining entry to the bedroom]. I pray that the inference is and it’s not been rebutted, nor has there been any explaining, that [Cantu] didn’t go in [the bedroom] without the intent to commit a crime.” RP at 73 (emphasis added).

Following this statement, the trial judge found Cantu guilty of residential burglary but dismissed the theft, drug, and alcohol charges. A fair

interpretation of this statement, along with the prosecutor’s discussion of the statutory inference provided in RCW 9A.52.040, leads this court to conclude that the trial judge impermissibly employed a mandatory presumption of criminal intent, making it incumbent upon Cantu to prove, with sufficient evidence, that his intent was innocent. f 16 In Deal, we found the error to be harmless because, even though the instruction shifted the burden to the defendant, Deal’s own testimony was sufficient to prove he had the requisite criminal intent. Deal, 128 Wn.2d at 697, 703.

However, unlike Deal, in this case there is no indication that the imposition of a mandatory presumption was harmless. It is the intent to commit a crime, not the actual commission of a crime, which is an element of residential burglary. State v. Bergeron, 105 Wn.2d 1, 15-17, 711 P.2d 1000 (1985); see also RCW 9A.52.025(1). Therefore the court’s acquittal on the theft charge may be irrelevant. But, given that the court employed a mandatory presumption of criminal intent, we cannot conclude that the error was harmless. IV

SUMMARY AND CONCLUSION ¶17 The permissive inference provided in RCW 9A.52.040 permits the trier of fact to reject the inferred conclusion of criminal intent regardless of whether the defendant provides an innocent explanation of the unlawful entry or not. Deal, 128 Wn.2d at 702-03. That is appropriate. Due process requires the State to bear the “ ‘burden of persuasion beyond a reasonable doubt of every essential element of a crime.’ ” Deal, 128 Wn.2d at 698 (quoting Hanna, 123 Wn.2d at 710).

Afair reading of the record leads us to conclude that the trial judge relieved the State of this burden by creating a mandatory presumption of criminal intent which Cantu was required to rebut. We therefore reverse the Court of Appeals, vacate the conviction without prejudice, and remand for further proceedings consistent with this opinion. Alexander, C.J., and C. Johnson, Sanders, Bridge, Owens, and Fairhurst, JJ., concur. Madsen, J., concurs in result only. Petitioner Cantu raised this argument in his supplement brief. Suppl. Br. of Pet’r at 3.

Under RAP 13.7(b), parties may not introduce new issues after the petition for review is granted. However, this court has inherent authority to consider issues not raised by the parties if necessary to reach a proper decision. See Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972). To reach a proper decision in this matter and clarify case law, it is necessary to consider this issue. Furthermore, it is arguably within the scope of the petition. The State did not object to our consideration of this issue. Sophia partially recanted on the stand.

It is unclear from the record how Moncada’s nephew came into possession of the items taken from her bedroom. In addition, Sophia testified that it was Cantu who had returned the missing money to Moneada after the incident. We recognize that this case is not factually “on all fours” with Deal. However, the underlying principle of Deal and its antecedents is that mandatory presumptions are not favored. See Deal, 128 Wn.2d at 702 (citing State v. Johnson, 100 Wn.2d 607, 617-20, 674 P.2d 145 (1983), overruled on other grounds by State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985)).

Since it appears that such mandatory presumption was in fact employed here, that principle applies. At the close of the bench trial, the trial judge stated to both counsel, in an apparent inquiry concerning the elements necessary to prove residential burglary, “Do you think I need to actually find that something was stolen from within the bedroom, or do you think that I need to, or do I have to find . . . that there had to be an intent to steal something from the bedroom?” RP at 69.