IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
JOHN A. JONES III,
FILED: March 12, 2012
Lau, J. â We previously remanded for resentencing because the sentencing
court imposed an exceptional sentence without correctly determining John Jonesâs
standard range on his conviction for second degree assault. State v. Jones, noted at
154 Wn. App. 1017, 2010 WL 264998. On resentencing, the court calculated Jonesâs
offender score as 7 and again imposed 120-month exceptional sentence. Because the
courtâs offender score calculation included California convictions that the State failed to
prove were legally or factually comparable to Washington offenses, we remand for
John A. Jones III was convicted of second degree assault, aggravated by the
presence of his minor child during the assault. The sentencing court found that Jones
had an offender score of âat least 6â and imposed a 120-month exceptional sentence.
On appeal, we affirmed his conviction but remanded for resentencing because the court
did not properly determine Jonesâs offender score. Jones, 2010 WL 264998, at *1-3.
On resentencing, the State argued Jonesâs offender score was 7. This
calculation included California convictions for one count of first degree murder and two
counts of attempted first degree murder.1 The court agreed with this offender score
calculation and again imposed an exceptional sentence of 120 months. Jones appeals
the exceptional sentence.
Jones argues the State failed to prove that his 1992 California convictions for
first degree murder and attempted first degree murder are legally or factually
comparable to Washington felonies. The State concedes the offenses are not legally
comparable. But the State counters that it presented sufficient comparability
information for the court to include Jonesâs California convictions in his offender score
because the offenses were factually comparable.
âA defendantâs offender score establishes the range a sentencing court may use
The offender score calculation also included a 2000 California conviction for
possession of narcotics/controlled substance. Jones does not challenge this offenseâs
inclusion in his offender score on appeal.
in determining the sentence.â State v. Thomas, 135 Wn. App. 474, 479, 144 P.3d 1178
(2006). In calculating the offender score, â[t]he sentencing court must include all
current and prior convictions . . . .â Thomas, 135 Wn. App. at 479. If a defendantâs
prior convictions are from another state, the Sentencing Reform Act requires the trial
court to classify the convictions âaccording to the comparable offense definitions and
sentences provided by Washington lawâ before including them in the offender score.
RCW 9.94A.525(3). The State must prove by a preponderance of the evidence that an
out-of-state conviction is comparable to a Washington crime. State v. Ford, 137 Wn.2d
472, 479-80, 973 P.2d 452 (1999).
To determine comparability, Washington courts apply a two-part test involving
legal comparability and factual comparability. First, the sentencing court compares the
elements of the out-of-state crime to the similar Washington criminal statute in effect
when the out-of-state crime was committed. In re Pers. Restraint of Lavery, 154 Wn.2d
249, 255, 111 P.3d 837 (2005). If the elements are âsubstantially similarâ or if the outof-state crime is defined more narrowly than in Washington, the out-of-state conviction
is included in the offender score. Lavery, 154 Wn.2d at 255. If the foreign crime is
defined more broadly than the Washington crime, the court proceeds to the second part
of the test to determine factual comparability. State v. Morley, 134 Wn.2d 588, 606,
952 P.2d 167 (1998). This requires the sentencing court to determine whether the
defendantâs conduct would have violated the comparable statute, as evidenced by the
indictment, information, or records of the foreign conviction. Lavery, 154 Wn.2d at 255.
âWhile it may be necessary to look into the record of a foreign conviction to
determine its comparability to a Washington offense, the elements of the charged crime
must remain the cornerstone of the comparison.â Morley, 134 Wn.2d at 606. The court
may examine only those documents that conclusively demonstrate that the relevant
facts were proved to a jury beyond a reasonable doubt or admitted by the defendant in
a guilty plea. Shepard v. United States, 544 U.S. 13, 21-26, 125 S. Ct. 1254, 161 L.
Ed. 2d 205 (2005); Lavery, 154 Wn.2d at 258; State v. Bunting, 115 Wn. App. 135, 14243, 61 P.3d 375 (2003). The sentencing court âis generally limited to examining the
statutory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.â Shepard, 544 U.S. at 16.
Jones argues that Californiaâs first degree murder and attempted first degree
murder statutes are broader than Washingtonâs murder and attempted murder
statutes.2 The State concedes that the California and Washington crimes at issue are
not legally comparable. 3
California Penal Code, section 187 defines âmurderâ as âthe unlawful killing of a
human being, or a fetus, with malice aforethought.â
âSuch malice may be express or implied. It is express when there is manifested
a deliberate intention unlawfully to take away the life of a fellow creature. It is implied,
when no considerable provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.
âWhen it is shown that the killing resulted from the intentional doing of an act
with express or implied malice as defined above, no other mental state need be shown
to establish the mental state of malice aforethought. Neither an awareness of the
obligation to act within the general body of laws regulating society nor acting despite
such awareness is included within the definition of malice.â CA Penal Code, Â§ 188.
The State concedes that under the California doctrine of provocative acts
murder, the California murder statute is broader than Washingtonâs murder statute in
very limited circumstances.
Thus, we consider factual comparability and determine whether Jonesâs
California conduct would have violated the relevant Washington criminal statutes.
Jones argues that the Stateâs documents are insufficient to prove his California first
degree murder and attempted first degree murder convictions are comparable to the
relevant Washington statutes. The State counters that under Washington law, the
defendantâs conduct constituted either intentional second degree murder or
second degree felony murder. RCW 9A.32.050(1)(a),(b);4 RCW 9A.08.020(2)(c);5
Neither party argues that California defines attempt more broadly. RCW
9A.28.020(1) states, âA person is guilty of an attempt to commit a crime if, with intent to
commit a specific crime, he or she does any act which is a substantial step toward the
commission of that crime.â Therefore any difference for the attempted murder
convictions must be based on the different definitions for murder.
RCW 9A.32.050 provides:
â(1) A person is guilty of murder in the second degree when:
â(a) With intent to cause the death of another person but without premeditation,
he or she causes the death of such person or of a third person; or
â(b) He or she commits or attempts to commit any felony, including assault, other
than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in
furtherance of such crime or in immediate flight therefrom, he or she, or another
participant, causes the death of a person other than one of the participants; except that
in any prosecution under this subdivision (1)(b) in which the defendant was not the only
participant in the underlying crime, if established by the defendant by a preponderance
of the evidence, it is a defense that the defendant:
â(i) Did not commit the homicidal act or in any way solicit, request, command,
importune, cause, or aid the commission thereof; and
â(ii) Was not armed with a deadly weapon, or any instrument, article, or
substance readily capable of causing death or serious physical injury; and
â(iii) Had no reasonable grounds to believe that any other participant was armed
with such a weapon, instrument, article, or substance; and
â(iv) Had no reasonable grounds to believe that any other participant intended to
engage in conduct likely to result in death or serious physical injury.
â(2) Murder in the second degree is a class A felony.â
RCW 9A.08.020 provides in relevant part:
â(1) A person is guilty of a crime if it is committed by the conduct of another person for
RCW 9A.08.020(3). To support this contention, the State relies on the California
Transcript of the Change of Plea on April 8, 1992 (âplea colloquyâ) between the court
and Jonesâs attorney. The State argues,
In the plea colloquy the defendantâs attorney told the court the factual
basis to support the plea was in the p.x. report. The report provided with the
transcript was the probation officerâs report and recommendation. That report
recounted the defendantâs version of events as told to the police and the
Respâtâs Br. at 9 (emphasis added) (citations omitted). Jones counters that the factual
basis relied on by the California sentencing court was a p.x. transcript,6 not a p.x.
report. Jones asserts that because this p.x. transcript is not in our record, there exists
no factual basis from which we can conclude Jonesâs crimes are factually comparable.
The State mistakenly argues that in the plea colloquy, the defense attorney told
which he [or she] is legally accountable.
â(2) A person is legally accountable for the conduct of another person when:
â(a) Acting with the kind of culpability that is sufficient for the commission of the
crime, he [or she] causes an innocent or irresponsible person to engage in such
â(b) He [or she] is made accountable for the conduct of such other person by this
title or by the law defining the crime; or
â(c) He [or she] is an accomplice of such other person in the commission of the
â(3) A person is an accomplice of another person in the commission of a crime if:
â(a) With knowledge that it will promote or facilitate the commission of the crime,
he [or she]:
â(i) Solicits, commands, encourages, or requests such other person to commit it;
â(ii) Aids or agrees to aid such other person in planning or committing it; or
â(b) His [or her] conduct is expressly declared by law to establish his [or her]
Jones asserts, âIn fact, the reference is to the transcript of the Preliminary
Hearing, colloquially referred to as a âP.X. Hearing.ââ Appellantâs Reply Br. at 2.
the court that the factual basis to support the plea was the p.x. report. The State also
mistakenly implies that this is a reference to an included probation officerâs report and
recommendation (âprobation reportâ). These contentions are demonstrably erroneous.
Our review of the record shows that during the plea colloquy, the court asked
both the State and defense counsel for the basis of the plea. Both counsel stated on
the record that the factual basis was the px transcript. But this transcript is not in our
record. Jones entered his California pleas on April 8, 1992. The probation report
states that the âreferral dateâ was May, 6, 1992, and the âcourt dateâ was June 3, 1992.
Therefore, the probation report was written after the plea colloquy and cannot be the
âp.x. transcriptâ referred to by counsel. The facts in the probation report have not been
proved beyond a reasonable doubt nor admitted by the defendant in his guilty plea.
Our record fails to show whether Jonesâs conduct constituted intentional second degree
murder or second degree felony murder under Washington law as the State contends.
It is the Stateâs burden to prove comparability of out-of-state offenses. The State failed
to carry that burden.
In the alternative, the State argues that even with an offender score of 1 instead
of 7, the record is clear that the court would impose the same sentence and, therefore,
remand is not necessary. âWhen the sentencing court incorrectly calculates the
standard range before imposing an exceptional sentence, remand is the remedy unless
the record clearly indicates the sentencing court would have imposed the same
sentence anyway.â State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997). âWe
are hesitant to affirm an exceptional sentence where the standard range has been
incorrectly calculated because of the great likelihood that the judge relied, at least in
part, on the incorrect standard ranges in his calculus.â Parker, 132 Wn.2d at 190.
Here, the courtâs written findings of fact show it relied on the California murder and
attempted murder convictions that the State failed to prove to justify the exceptional
sentence. We remand for resentencing consistent with this opinion.7
Because we remand, we need not address Jonesâs argument that the court
relied on other improper factors at sentencing.