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How will an out-of-state conviction impact your Washington sentence?

Posted by Brian C. Zuanich | Jun 17, 2019 | 0 Comments

California has something for almost everyone—Disneyland for the kids, beaches for the adults, celebrities for the fans, and of course the weather.

Tommie Davis also benefitted from his lengthy stay in California, but he wouldn't know just how much until he ended up in a Washington court many years later.  

1. The Sentencing Reform Act and Non-Washington Convictions

Davis pleaded guilty to unlawfully possessing a firearm, a felony, in King County Superior Court. 

Under the Sentencing Reform Act (SRA), a Washington felony defendant's prison sentence depends in large part on his criminal history, which in turn depends on whether the defendant has criminal convictions outside the state.

But for an out-of-state conviction to “count” toward a defendant's “offender score” (which determines the sentence under the SRA), the out-of-state conviction has to be “comparable” an in-state conviction.

Davis had five previous burglary convictions in California. Therefore, to impact his sentence under SRA, prosecutors would need to prove that burglary in California is comparable to burglary in Washington.

In other words, are they the same?

The State argued that they are. Davis argued that they aren't. The trial judge in King County agreed with the State.

Davis appealed—and won in the Court of Appeals.

Comparability requires a two-part analysis.

2. Are the crimes comparable? A 2-Part Test

In State v. Davisthe Court of Appeals considered the two-part test for determining whether a California burglary conviction is comparable to a Washington burglary conviction. 

First, are the crimes the same legally?

That is, is burglary in California the same as burglary in Washington. This part of the test is relatively easy; courts just read the two laws and compare.

In Washington, a person is guilty of burglary in the second degree if he or she “enters or remains unlawfully in a building other than a vehicle or a dwelling” with the intent to commit a crime (RCW 9A.52.030).

In California, a person is guilty of burglary if he or she “enters” any house or building “or mine or any underground portion” with the intent to commit a crime.

Clearly not the same, the Court ruled. Two obvious differences.

First difference: Burglary in California does not require an unlawful “entry.” Let's say Jane walks into Ride Aid, steals toothpaste, and runs away. In Washington, Jane did not commit burglary, just theft—because the simple act of going inside Rite Aid wasn't unlawful. But in California, Jane committed burglary because the initial entry does not have to be unlawful.

Second difference: In Washington, burglary in the secon degree is limited to “buildings” only, but not in California.

In fact, the State conceded that the crimes are not the same legally. It focused entirely the next part of the test.

Are the crimes the same factually?

In other words, whether the defendant's conduct underlying the out-of-state conviction would have violated the comparable Washington statute. Look at Davis's particular acts in California, and would these acts have constituted second-degree burglary in Washington. 

The trial court, however, cannot just look at the facts alleged in the government's complaint. The court can only consider facts that were clearly “proved beyond a reasonable doubt to a jury or admitted by the defendant.”

Furthermore, the only facts that matter are the facts that separate a Washington burglary from a California burglary. As discussed above, the crucial difference between burglary in Washington and California is the “unlawful entry” element. In California, any entry made with the intent to commit a larceny or felony is unlawful, but in Washington, the entry itself must be independently unlawful (see Rite Aid example above).

In this case, the Court could not conclude—based on the felony complaints and guilty plea paperwork that the State presented from the California cases—that Davis actually admitted to “unlawfully” entering a building in any of his five prior cases. Maybe he did, but the State has to prove comparability, and the State didn't.

Therefore, the trial court was wrong to have included Davis's prior CA burglary convictions in his offender score.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.

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