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. 66475-1-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
JOHN A. JONES III,                          )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: March 12, 2012
                                            )

       Lau, J.  --  We previously remanded for resentencing because the sentencing 

court imposed an exceptional sentence without correctly determining John Jones's 

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 Jones's

offender score as 7 and again imposed 120-month exceptional sentence.  Because the 

court's offender score calculation included California convictions that the State failed to 

prove were legally or factually comparable to Washington offenses, we remand for 

resentencing. 

66475-1-I/2

                                            FACTS

       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 "at least 6" and imposed a 120-month exceptional sentence.  

On appeal, we affirmed his conviction but remanded for resentencing because the court 

did not properly determine Jones's offender score.  Jones, 2010 WL 264998, at *1-3.

       On resentencing, the State argued Jones's 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.

                                          ANALYSIS

       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 Jones's California convictions in his offender score 

because the offenses were factually comparable.

       "A defendant's offender score establishes the range a sentencing court may use 

       1 The offender score calculation also included a 2000 California conviction for 
possession of narcotics/controlled substance.  Jones does not challenge this offense's 
inclusion in his offender score on appeal.
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in determining the sentence."  State v. Thomas, 135 Wn. App. 474, 479, 144 P.3d 1178 

(2006).  In calculating the offender score, "[t]he sentencing court must include all 

current and prior convictions . . . ."  Thomas, 135 Wn. App. at 479.  If a defendant's 

prior convictions are from another state, the Sentencing Reform Act requires the trial 

court to classify the convictions "according to the comparable offense definitions and 

sentences provided by Washington law" 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 "substantially similar" or if the out-

of-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 

defendant's 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.

       "While it may be necessary to look into the record of a foreign conviction to 

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determine its comparability to a Washington offense, the elements of the charged crime 

must remain the cornerstone of the comparison."  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, 142-

43, 61 P.3d 375 (2003).  The sentencing court "is 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."  Shepard, 544 U.S. at 16.

       Jones argues that California's first degree murder and attempted first degree 

murder statutes are broader than Washington's murder and attempted murder 
statutes.2  The State concedes that the California and Washington crimes at issue are 

not legally comparable. 3

       2 California Penal Code, section 187 defines "murder" as "the unlawful killing of a 
human being, or a fetus, with malice aforethought."  
       "Such 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.
       "When 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." CA Penal Code, § 188.  
       The State concedes that under the California doctrine of provocative acts 
murder, the California murder statute is broader than Washington's murder statute in 
very limited circumstances.  

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66475-1-I/5

       Thus, we consider factual comparability and determine whether Jones's 

California conduct would have violated the relevant Washington criminal statutes.  

Jones argues that the State's 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 

defendant's 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

       3 Neither party argues that California defines attempt more broadly.  RCW 
9A.28.020(1) states, "A 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." Therefore any difference for the attempted murder 
convictions must be based on the different definitions for murder.

       4 RCW 9A.32.050 provides:
       "(1) A person is guilty of murder in the second degree when:
       "(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
       "(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:
       "(i) Did not commit the homicidal act or in any way solicit, request, command, 
importune, cause, or aid the commission thereof; and
       "(ii) Was not armed with a deadly weapon, or any instrument, article, or 
substance readily capable of causing death or serious physical injury; and
       "(iii) Had no reasonable grounds to believe that any other participant was armed 
with such a weapon, instrument, article, or substance; and
       "(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.
       "(2) Murder in the second degree is a class A felony."

       5 RCW 9A.08.020 provides in relevant part:
"(1) A person is guilty of a crime if it is committed by the conduct of another person for 
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66475-1-I/6

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 ("plea colloquy") between the court 

and Jones's attorney.  The State argues, 

              In the plea colloquy the defendant's 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 officer's report and recommendation.  That report 
       recounted the defendant's version of events as told to the police and the 
       probation officer.

Resp't's 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 Jones's crimes are factually comparable.

       The State mistakenly argues that in the plea colloquy, the defense attorney told 

which he [or she] is legally accountable.
       "(2) A person is legally accountable for the conduct of another person when:
       "(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 
conduct; or
       "(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
       "(c) He [or she] is an accomplice of such other person in the commission of the 
crime.
       "(3) A person is an accomplice of another person in the commission of a crime if:
       "(a) With knowledge that it will promote or facilitate the commission of the crime, 
he [or she]:
       "(i) Solicits, commands, encourages, or requests such other person to commit it; 
or

       "(ii) Aids or agrees to aid such other person in planning or committing it; or
       "(b) His [or her] conduct is expressly declared by law to establish his [or her] 
complicity."

       6 Jones asserts, "In fact, the reference is to the transcript of the Preliminary 
Hearing, colloquially referred to as a 'P.X. Hearing.'" Appellant's Reply Br. at 2.
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66475-1-I/7

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 officer's report and 

recommendation ("probation report").  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 "referral date" was May, 6, 1992, and the "court date" was June 3, 1992.  

Therefore, the probation report was written after the plea colloquy and cannot be the 

"p.x. transcript" 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 Jones's conduct constituted intentional second degree 

murder or second degree felony murder under Washington law as the State contends.  

It is the State's 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.  "When 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."  State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997).  "We 

are hesitant to affirm an exceptional sentence where the standard range has been 

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incorrectly calculated because of the great likelihood that the judge relied, at least in 

part, on the incorrect standard ranges in his calculus."  Parker, 132 Wn.2d at 190.

Here, the court's 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

WE CONCUR:

       7 Because we remand, we need not address Jones's argument that the court 
relied on other improper factors at sentencing.
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