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INTHE SUPREME COURT OFTHE STATE OFWASHINGTON
STATE OF WASHINGTON, No. 89134-6 Respondent, En Bane 

### v. FiledMay 15, 2014 EDWARD MARK OLSEN, Petitioner.
J.M. JOHNSON,J.*-Inthis case, we considerWashington'streatment offoreign convictions for sentencing purposes in light ofthe recent United States Supreme Court case

### Descamps v. UnitedStates,_U.S._, 133 S. Ct. 2276, 186 L. Ed. 2d438 (2013). PetitionerEdward Olsen was convicted ofa number ofcrimes, including attempted second degree murder, for an incident ofdomestic violence against the mother ofhis children. His offender score at

* Justice James M. Johnson is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a).State v. Olsen (EdwardMark), No. 89134-6


### sentencing was six and he received an exceptional sentence of360 months. Olsen claims that aforeign convictionfor terrorist threats was not COII:\parable to Washington's felony harassment and should not have been included in his offender score. The Court of Appeals, Division Two, affirmed Olsen's convictions and sentence. We affirm the Court ofAppeals. FACTS AND PROCEDURAL HISTORY 

### This case arose out ofan incident ofdomestic violence perpetrated by petitioner Olsen against the mother ofhis children, Bonnie Devenny. Olsen broke into Devenny's house, poured gasoline on her while she was sleeping, and told her that she was going to die. Police later recovered a lighter near the bed. Olsen has a history ofthreatening and committing acts ofdomestic violence against Devenny, including a California conviction for terrorist threats for whichhe pleadedno contest. Duringthe Californiaincident, Olsen allegedly wrapped duct tape around Devenny's legs and told her that he was going to kill her, cut her up into little pieces, and put the pieces in a plastic storage container. Forthe gasoline incident, Olsenwas chargedin Kitsap County Superior Court by second amended information of attempted first degree murder, attempted second degree murder, first degree burglary, felony harassment,
2State v. Olsen (EdwardMark), No. 89134-6

and third degree malicious mischief. All felony counts included domestic violence aggravators for the purposes ofRCW 9.94A.535 because the crime occurred in the presence ofDevenny and Olsen's 12-year-old son. A jury convictedOlsenas chargedonall counts except attemptedfirst degreemurder. Olsen was sentenced using an offender score of six, in part because his California conviction for terrorist threats was found to be comparable to Washington's felony harassment. The trial court imposed an exceptional sentence of360 months. Olsen appealed to Division Two of the Court of Appeals, which affirmedhis convictions and sentence. 

### State v. Olsen, 175 Wn. App. 269, 309 P.3d 518 (2013). The Court ofAppeals opinionwas issued onJune 27, 2013,
one week after 

### Descamps was issued by the United States Supreme Court. The Court of Appeals opinion did not address 

### Descamps. Olsen filed a petition for review in this court. We granted review only on the issue of comparability of the California conviction, including the propriety of examining the facts ofthe foreign conviction in light of

### Descamps. State v. Olsen, 178 Wn.2d 1018, 312 P.3d 651 (2013). We affirm the Court of Appeals.

3State v. Olsen (EdwardMark), No. 89134-6

ANALYSIS We review the trial court's calculation ofa defendant's offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007) (citing State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003)). We also review de
novo claimsthatthepetitioner's sentenceviolateshisrightto ajurytrialunder the Sixth Amendment to the United States Constitution. State v. Mutch, 171 Wn.2d 646, 656, 254 P.3d 803 (2011) (citing State v. Alvarado, 164 Wn.2d 556, 560-61, 563, 192 P.3d 345 (2008)). A. Washington's Comparability of Foreign Convictions under the Sentencing Reform Act (SRA) The SRA creates a grid of standard sentencing ranges calculated according to the crime's seriousness level andthe defendant's offender score. RCW 9.94A.505, .510, .520, .525; State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999). The offender score is the sum ofpoints accrued as a result of prior convictions. RCW 9.94A.525. Pursuant to RCW 9.94A.525(3), "[oJut-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided byWashington law." The State bears the burden ofproving the existence and comparability ofall out-of-state convictions. Ford, 137 Wn.2d at 480. We first stated Washington's two-part test for comparing foreign 4State v. Olsen (EdwardMark), No. 89134-6



### convictions in State v. Morley, 

### 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998). Under the legal prong, courts compare the elements of the out-of-state conviction to the relevant Washington crime. If the foreign conviction is identical to or narrower than the Washington statute and thus contains all the most serious elements ofthe Washington statute, then the foreign conviction counts towards the offender score as ifit were the Washington offense. Id. 

### at 606. If, however, the foreign statute is broader than the Washington statute, the courtmoves onto the factual prong-determiningwhetherthe defendant's conduct would have violated the comparable Washington statute. !d. (citing State v. Duke, 

### 77 Wn. App. 532, 535, 892 P.2d 120 (1995)). In In re Personal Restraint of Lavery, 

### 154 Wn.2d 249, 256, 111 P.3d 837 (2005), we recognized that Morley's 

### factual analysis could prove problematic afterApprendi v. New Jersey, 

### 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d435 (2000). InApprendi, 

### the United States Supreme Courtheldthat except for a prior conviction, a "fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt." 530 U.S. at 490. We have consistently held that the existence ofa prior conviction need not be presented to ajury and proved beyond a reasonable doubt. Lavery, 

### 154 Wn.2d at 256 (citing

5State v. Olsen (EdwardMark), No. 89134-6

State v. Smith, 150 Wn.2d 135, 141-43, 75 P.3d 934 (2003)). InLavery, we recognized that, as in the case ofprior convictions, a certified copy ofa prior judgment is highly reliable evidence when analyzing foreign crimes that are legallycomparableto Washingtoncrimes. 

### Id. at 256-57. However, this is not the case for foreign crimes that are not legally comparable. "Inessence, such crimes are different crimes." !d. at 257. We concluded that "Apprendi does not apply where the State seeks to prove the existence ofa prior conviction but does apply when a court must lookto the facts underlying a foreign offense to determine its comparability." State v. Thiefault, 160 Wn.2d 409, 419, 158 P.3d 580 (2007) (citing Lavery, 154 Wn.2d at 256-57). Avoiding conflict with Apprendi, we narrowed Morley's factual prong to consider only facts that were admitted, stipulated to, orprovedbeyondareasonabledoubt. Lavery, 154Wn.2dat 258; Thiefault, 160 Wn.2d at 415. We held that Lavery's prior foreign robbery conviction
was neither factually nor legally comparable to Washington's second degree robbery statute and thus could not count as a strike under the Persistent Offender AccountabilityAct ofthe SRA. Lavery, 154 Wn.2d at 258. B. Descamps We granted review in this case to consider the comparability ofthe

6State v. Olsen (EdwardMark), No. 89134-6



### California conviction, including the propriety ofexamining the facts ofthe foreign conviction in light ofDescamps. 

### We consider, in part, whether our current comparability analysis survives Descamps. 

### We hold that it does. On June 20, 2013, the United States Supreme Court issued its opinion in Descamps. 

### In that case, the defendant was convicted in federal district court ofpossession ofafirearmby a convicted felon. He was sentencedunder the Armed Career Criminal Act of 1984 (ACCA), 1 

### which increases the sentences for some federal defendants who have three prior violent felony convictions. Descamps, 

### 133 S. Ct. at 2281. To determine whether a past convictionqualifies, courts use the "categorical approach." Id. 

### This involves comparing the elements ofthe statute forming the basis ofthe defendant's conviction with the elements ofthe "generic crime," which is the offense as commonly understood. Jd. 

### To qualify as an ACCA predicate, the prior conviction's statutory elements must bethe same as or narrowerthan those of the generic offense. Id. 

### In analyzing ACCA predicates, federal courts use the "modified categorical approach" when a prior conviction involves a divisible statute. Such statutes set out one or more elements ofthe offense in the alternative.

1 18 U.S.C. § 924(e). 

### 7State v. Olsen (EdwardMark), No. 89134-6

Id. 

### One example ofa divisible statute is a burglary statute involving entry into a building or 

### an automobile. Id. 

### When one alternative matches an element ofthe generic offense but the other does not, sentencing courts may consult some documents,2 

### including the indictment andjury instructions, to determine which alternative was the basis for the conviction. The court then applies the categorical approachbycomparing the conviction crime elements with the generic crime elements. Id. 

### Ifthe elements ofthe defendant's prior conviction, as they are charged, are the same or narrower than the generic offense, the conviction can beused to impose an ACCA sentence. The modified categorical approach is a necessary extension of the categorical approach. "Because the statute is 'divisible'-i.e., comprises multiple, alternative versions ofthe crime-a later sentencing court cannot tell, without reviewing something more, ifthe defendant's conviction was for the generic (building) or non-generic (automobile) form of [the crime]." Id. 

### at 2284.

2 TheUnited States Supreme Court inJohnson v. UnitedStates, 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010), listed which documents canbereviewed in a modified categorical approach, including "chargingdocuments, plea agreements, transcripts ofplea colloquies, findings offact and conclusions oflaw from abenchtrial, andjuryinstructions and verdict forms." 

### 8State v. Olsen (EdwardMark), No. 89134-6



### In Descamps, 

### the United States Supreme Court considered whether sentencing courts can consult outside documents when a defendant is convicted under an indivisible 

### statute that is broader than the generic offense. Id. 

### at 2283. This would involve courts looking to a case's underlying facts to determine ifthe defendant's conduct met the elements ofthe generic crime
even if the charging statute was broader. The Court ultimately held that "sentencing courts maynot apply the modified categorical approach whenthe crime ofwhich the defendant was convicted has a single, indivisible set of elements." !d. at 2282. This means thatunless a statute contains elements set out in the alternative, courts may not look to outside documents to determine the basis for the conviction. If a prior offense contains broader statutory elements thanthe generic offense, sentencing courts are forbidden from using the prior offense as the basis for an ACCA sentence, regardless of the underlying criminal conduct. The Court inDescamps 

### recognized that fact inquiries would (at the least) raise serious SixthAmendment concerns ifit went beyond merely identifying a prior conviction. Those concerns . . . counsel against allowing a sentencing court to "make a disputed" determination "about what the defendant and statejudgemust have understood as the factual basis ofthe prior plea," or what thejuryin a prior trial must have accepted as the theory ofthe crime.

9State v. Olsen (EdwardMark), No. 89134-6

Id. at 2288 (quoting Shepard v. United States, 544 U.S. 13, 25, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (plurality opinion)). Under the Sixth Amendment, it is inappropriate to "extend[ ]judicial factfinding beyond the recognition ofapriorconviction." Id.; see alsoApprendi, 530 U.S. at 490. Descamps' Sixth Amendment implications do not call into question Washington's comparability analysis under the SRA. A long line ofcases supports the use ofthe categorical and modified categorical approaches for analyzing foreign convictionsundertheACCA. SeeJohnson v. UnitedStates, 559 U.S. 133, 144, 130 S. Ct. 1265,-176 L. Ed. 2d 1 (2010) (approving ofthe modifiedcategorical approachfor divisible statutes);Nijhawan v. Holder, 557 U.S. 29, 41, 129 S. Ct. 2294, 174 L. Ed. 2d22 (2009) (expressing approval of the modified categorical approach); Shepard, 544 U.S. at 13 (recognizingthat the categorical approach applies to plea agreements); Taylor v. UnitedStates, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) (establishing the categorical and modified categorical approaches to the ACCA). This federal framework is consistent with the Lavery framework, which limits our consideration of facts that might have supported a prior conviction to only those facts that were clearly charged and then clearly proved beyond a reasonable doubt to ajuryor admittedbythe defendant.
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TheUnited States Supreme Court's consideration ofSixthAmendment rights does apply to state cases. SeeApprendi, 530 U.S. at 476 (recognizing that the Fourteenth Amendment extends the Due Process Clause ofthe Fifth Amendment and notice andjury trial guaranties ofthe Sixth Amendment to proceedings in state courts). Our clarifications ofthe factual prong inLavery and Thiefault guarantee thatjudicial determinations will not usurp the role of thejuryinviolation ofthe Sixth Amendment. C. The Trial Court's Determination ofOlsen's Offender Score Olsenclaimsthatthe Californiacrime ofterroristthreats is broaderthan the Washington crime of felony harassment and therefore was improperly used to calculate his offender score. CAL. PENAL CODE § 422(a) defined "terrorist threats" 3 as [a]ny person who willfully threatens to commit a crime which will result in death orgreatbodilyinjuryto anotherperson, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even ifthere is no intent ofactually carrying it out, which, on its face andunderthe circumstances inwhichit is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity ofpurpose and an immediate prospect of execution ofthe threat, and thereby causes that person reasonably to be in sustained fear for his or

3 Olsen was charged with making "terrorist threats" under CAL. PENAL CODE § 422(a) (1998). The name of the crime has since been changed to "criminal threats" but the substance ofthe statuteremains unchanged. 11State v. Olsen (EdwardMark), No. 89134-6



### her.own safety or for his orherimmediate family's safety. (Emphasis added.) Pursuant to former RCW 9A.46.020 (1999): (1)Aperson is guilty ofharassment if: (a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened orto any otherperson.... (b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. (2) A person who harasses another is guilty of a gross misdemeanor
. . . except that the person is guilty of a class C felony if
. . . (b) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any otherperson. Under the legal prong of our two-part test, we first compare the elements ofthe out-of-state conviction to the relevant Washington crime. If the foreign conviction is identical to, or narrower than, the Washington statute, the foreign conviction counts towards the offender score as ifit were the Washington offense. Morley, 134 Wn.2d at 606. Here, the two statutes
are not legally comparable because the California statute criminalizes threats to commit a crime that will result in death or great bodily injury. See CAL. PENAL CODE § 422. Under the Washington statute, threats ofgreat bodily injury generally do not constitute a felony. FormerRCW 9A.46.020(2). We, therefore, move onto the factual prong, underwhichwe determine 12State v. Olsen (EdwardMark), No. 89134-6

whether the defendant's conduct would have violated the comparable Washington statute. Morley, 134 Wn.2d at 606. We may consider only facts that were admitted, stipulated to, or proved beyond a reasonable doubt. Thiefault, 160 Wn.2d at 415. For his California conviction of terrorist threats, Olsen pleaded no contest to all counts. Under California law, the '"legal effect ofsuch a plea, to a crime punishable as a felony, shall be the same as that ofaplea ofguilty for all purposes."' People v. Wallace, 33 Cal. 4th 738,749,93 P.3d 1037, 16 Cal. Rptr. 3d 96 (2004) (quoting CAL. PENAL CODE § 1016(3)). Moreover, "[a] guilty plea 'admits every element ofthe crime charged."' Id. (quoting People v. Thomas, 41 Cal. 3d 837, 844 n.6, 718 P.2d 94, 226 Cal.·Rptr. 107 (1986)). Under California law, even where the statutory elements are in the disjunctive, if the charging document presents them in the conjunctive, a guilty plea admits each ofthe elements. People v. Tuggle, 232 Cal. App. 3d 147, 154-55,283 Cal. Rptr. 422 (1991), overruledon othergrounds byPeople
v. Jenkins, 10 Cal. 4th 234, 893 P.2d 1224, 40 Cal. Rptr. 2d 903 (1995). Count I ofthe information alleges, inpart, that Olsen "didwillfullyand unlawfully threaten to commit a crime which would result in death andgreat bodily injury to [Devenny]." Ex. 37 (emphasis added). Olsen, therefore,
13State v. Olsen (EdwardMark), No. 89134-6

admitted threatening to commit a crime that would result in both death and great bodilyinjuryto Devenny. Olsen further alleges that Cal. Penal Code§ 422lacks the element that the victim fears death, which former RCW 9A.46.020 requires. Suppl. Br. of Pet'r at 2. The California statute requires the threat to "conveyto the person threatened, a gravity ofpurpose and an immediate prospect ofexecution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety." CAL. PENAL CODE § 422(a). Because the statute iswritteninthe disjunctive, thetype offear relatesbackto thetype ofthreateither of death or great bodily injury. Here, Olsen admitted to threatening both death and great bodily injurybyimplicitly admitting all elements ofthe crimethrough a no contestplea. See Wallace, 33 Cal. 4th at 749; Tuggle, 232 Cal. App. 3d at 154-55. Accordingly, the requirement that Devenny feared death is satisfied. Inperforming the factual analysis as narrowed inLavery and Thiefault, it is evident that Olsen's California conviction for terrorist threats under Cal. Penal Code§ 422 is factually comparable to felony harassment under former RCW 9A.46.020. The trial court properly calculated Olsen's offender score using the foreign conviction.

14State v. Olsen (EdwardMark), No. 89134-6



### Olsen claims that because the California conviction should not have been used in his offender score, a separate conviction for custodial interference washes out. He, therefore, contends that his offender score should be four instead ofsix. However, since the California conviction was properly included in his offender score, the custodial interference conviction does not wash out. CONCLUSION 

### Because Olsen admitted facts surrounding his California conviction that would have satisfied Washington's felony harassment statute, the trial court properly included the foreign conviction in his offender score. Washington's comparability analysis of foreign convictions surv1ves Descamps. 

### We, therefore, affirm the Court ofAppeals.

15State v. Olsen (EdwardMark), No. 89134-6

WE CONCUR:

16