                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           May 31, 2017

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 43167-0-II

                                Respondent,

         v.

    CHARLES V. FARNSWORTH, JR.,                                UNPUBLISHED OPINION

                                Appellant.


        MELNICK, J. — The Washington Supreme Court affirmed Charles Farnsworth’s conviction

for robbery in the first degree and remanded the case to us to resolve “the issues of the

comparability of Farnsworth’s earlier out-of-state conviction.”1 State v. Farnsworth, 185 Wn.2d

768, 789, 374 P.3d 1152 (2016). The trial court sentenced Farnsworth as a persistent offender to

a term of total confinement for life without the possibility of release.2

        Farnsworth argues his prior conviction in California for vehicular manslaughter was not

comparable to a most serious offense in Washington, the trial court violated his rights to a trial by

jury and due process by sentencing him on the basis of facts it found established by the

preponderance of the evidence, and his persistent offender sentence violated equal protection. In

a statement of additional grounds (SAG), Farnsworth further asserts that the trial court erroneously

imposed legal financial obligations (LFOs). We disagree with Farnsworth’s arguments and affirm.


1
  We also address the legal financial obligation issue Farnsworth raised in his statement of
additional grounds (SAG) since we did not decide it previously.
2
    RCW 9.94A.570.
43167-0-II


                                                FACTS3

          A jury found Farnsworth guilty of robbery in the first degree. The sentencing court entered

findings of fact and conclusions of law determining that Farnsworth was a persistent offender

because he had previously committed two most serious offenses. Specifically, Farnsworth had

been convicted of vehicular manslaughter in California and robbery in the first degree in

Washington. At sentencing, the State presented the court with copies of the abstract of judgment

and charging document showing Farnsworth had been convicted of vehicular manslaughter.

Accordingly, the court sentenced Farnsworth to a term of total confinement for life without the

possibility of release. The sentencing court also imposed LFOs; however, it imposed only

mandatory legal financial obligations, including the $500 crime victim assessment, the $100 DNA

(deoxyribonucleic acid) fee, and the $200 filing fee.

          Upon remand, we analyze Farnsworth’s appeal of his sentence.

                                              ANALYSIS

I.        COMPARABILITY OF FOREIGN CONVICTION TO A MOST SERIOUS OFFENSE

          Farnsworth argues that the State failed to establish that his prior conviction in California

was comparable to a most serious offense under Washington law.4 We disagree.

          In Washington, a defendant found to be a “persistent offender” is sentenced to life in prison

without the possibility of release. RCW 9.94A.570. A “persistent offender” is one who has been

convicted in this state of any felony considered a “most serious offense” (or “strike offense”) and,




3
 More detailed facts of this case can be found in State v. Farnsworth, 184 Wn. App. 305, 307-09,
348 P.3d 759 (2014), and Farnsworth, 185 Wn.2d at 772-74.
4
     Farnsworth makes the same argument in his SAG.


                                                   2
43167-0-II


prior to the commission of such offense, has been convicted of a “most serious offense” on at least

two separate occasions. RCW 9.94A.030(38)(a).

       An out-of-state conviction may count as a strike if it is comparable to a most serious offense

in Washington. RCW 9.94A.030(38)(a)(ii); RCW 9.94A.030(33)(u). Whether an out-of-state

offense is considered in a defendant’s offender score or as a most serious offense is controlled by

RCW 9.94A.525(3), which states that “[o]ut-of-state convictions for offenses shall be classified

according to the comparable offense definitions and sentences provided by Washington law.”

       Washington courts utilize a two-part test to determine the comparability of an out-of-state

offense. State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007). First, the sentencing court

determines whether the out-of-state offense is legally comparable—“that is, whether the elements

of the [out-of-state] offense are substantially similar to the elements of the Washington offense.”

Thiefault, 160 Wn.2d at 415. If the elements of the out-of-state offense are broader than its

Washington counterpart, the sentencing court then determines “whether the offense is factually

comparable—that is, whether the conduct underlying the [out-of-state] offense would have

violated the comparable Washington statute.” Thiefault, 160 Wn.2d at 415 (emphasis added).5

The standard of proof for finding comparability is preponderance of the evidence. State v.

McKague, 159 Wn. App. 489, 518, 246 P.3d 558 (2011). “A court’s determination of whether an

out-of-state conviction is legally comparable to a most serious offense in Washington is reviewed

de novo.”      State v. Bluford, No. 93668-4, slip op. at ___ (Wash. May 4, 2017),

http://www.courts.wa.gov/opinions/pdf/936684.pdf.




5
  “In making the factual comparison, the sentencing court may rely on facts in the out-of-state
record that are admitted, stipulated to, or proved beyond a reasonable doubt.” Thiefault, 160
Wn.2d at 415.


                                                 3
43167-0-II


       Statutory interpretation is a question of law that we review de novo. State v. Watson, 146

Wn.2d 947, 954, 51 P.3d 1 (2002). An unambiguous statute is not subject to judicial construction

where the language, taken as a whole, is clear and unambiguous. Watson, 146 Wn.2d at 955. In

interpreting statutory provisions, our primary objective is to ascertain and give effect to the intent

and purpose of the legislature in creating the statute. Watson, 146 Wn.2d at 954. We discern

“legislative intent from the plain language enacted by the legislature, considering the text of the

provision in question, the context of the statute in which the provision is found, related provisions,

amendments to the provision, and the statutory scheme as a whole.” Fast v. Kennewick Pub. Hosp.

Dist., 187 Wn.2d 27, 33, 384 P.3d 232 (2016). We initially look to the language of the statute; if

a statute is clear on its face, its meaning is to be derived from the plain language of the statute

alone. Watson, 146 Wn.2d at 954. A statute is unclear if it can be reasonably interpreted in more

than one way, but “it is not ambiguous simply because different interpretations are conceivable.”

Watson, 146 Wn.2d at 955.

       A.      AMBIGUITY

       We first address and reject Farnsworth’s arguments that the identity of the California

offense for which he was convicted is “ambiguous.” Supp. Br. of Appellant at 33-35. We note

that in State v. Farnsworth, 133 Wn. App. 1, 22, 130 P.3d 389 (2006) (convictions for two counts

of robbery in the first degree affirmed), “Farnsworth admitted that he has a prior California

conviction for vehicular manslaughter” in 1984. This admission is supported by the record.

       Farnsworth asserts that he was convicted not of a Penal Code offense but of a vehicle code

offense; however, the abstract of judgment states that Farnsworth was convicted of a “PC [i.e.,

Penal Code]” offense. Clerk’s Papers (CP) at 756. Farnsworth’s first assertion fails.




                                                  4
43167-0-II


       Contrary to his previous argument, Farnsworth next points out that the charging document

contained two counts, a Penal Code offense in count 1 and a Vehicle Code offense in count 2. He

then notes that although he was convicted of a Penal Code offense, the abstract of judgment refers

to count “2.” CP at 756. Thus, Farnsworth seeks to rely on the record of the California case hoping

to undermine the abstract of judgment. But sentencing courts are forbidden from “go[ing] behind

the verdict and sentence and judgment” entered in a prior case when determining whether to

sentence the defendant as a persistent offender. State v. Ammons, 105 Wn.2d 175, 189, 713 P.2d

719, 718 P.2d 796 (1986). Therefore, we reject this argument.

       Farnsworth next argues that an ambiguity exists because the abstract of judgment refers to

§ “192(3)(c)” and not § 192(c)(3), the correct provision. Supp. Br. of Appellant at 35. We

disagree. It is clear that this error is a typographical error because the parties agree that the

California Penal Code has never contained a section numbered 192(3)(c). In addition, the abstract

of judgment abbreviates the name of the offense committed as “vehic mansl.” CP at 756. Based

on the foregoing, the identity of the California offense for which Farnsworth was convicted is not

ambiguous.

       B.      Legal Comparability

       Farnsworth argues that the legal elements of California’s vehicular manslaughter offense

are not comparable to those of Washington’s vehicular homicide offense. We disagree.6

       Farnsworth was convicted of vehicular manslaughter under the former California Penal

Code. The elements are: “the unlawful killing of a human being without malice” by “[d]riving a

vehicle in violation of Section 23152 or 23153 of the Vehicle Code and in the commission of an


6
  We note that this argument contradicts Farnsworth’s concession in his previous case where he
stated that “his California conviction was based on a statute identical to an equivalent Washington
criminal statute.” Farnsworth, 133 Wn. App. at 10.


                                                5
43167-0-II


unlawful act, not amounting to a felony, and with gross negligence.” Former Cal. Penal Code §

192(c)(3). In turn, former California Vehicle Code 23153(a) (1984) made it

          unlawful for any person, while under the influence of an alcoholic beverage or any
          drug . . . to drive a vehicle and, when so driving, do any act forbidden by law or
          neglect any duty imposed by law in the driving of the vehicle, which act or neglect
          proximately causes death or bodily injury to any person other than the driver.

          Under this California statutory scheme, a driver committed vehicular manslaughter when

he or she killed another person by driving under the influence, the killing occurred while the driver

committed an unlawful act not amounting to a felony, the unlawful act proximately caused the

death, and the driver was grossly negligent.

          Under Washington law, vehicular homicide by a person under the influence of alcohol or

drugs is a most serious offense. RCW 9.94A.030(32)(r). The former vehicular homicide statute

provided in relevant part:

          When the death of any person ensues within three years as a proximate result of
          injury proximately caused by the driving of any vehicle by any person while under
          the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, . . .
          the person so operating such vehicle is guilty of vehicular homicide.

Former RCW 46.61.520(1) (1983).7 Under this Washington statutory scheme, a driver committed

vehicular homicide when he or she caused injuries resulting in the death of another person within

three years and the injuries were proximately caused by the driver’s driving under the influence.

          Farnsworth argues that the statutes are not legally comparable because the causation

elements differ.8 He argues that the California statute requires that the death be caused by an act




7
    LAWS OF 1983, ch. 164, § 1.
8
    Farnsworth does not argue that Washington’s three-year time limit bears on this analysis.


                                                   6
43167-0-II


forbidden by law or neglect of a legal duty, while in contrast the Washington statute requires that

the drunk driving itself caused the death. We disagree.

       Although the California statute contains additional elements, conduct amounting to

vehicular manslaughter in California will also amount to vehicular homicide in Washington. The

additional elements demonstrate that the California statute is narrower than the comparable

Washington statute. The proof of the additional elements is necessary to show a violation of the

law in California, but not in Washington. Any breach of the California statute would, therefore,

necessarily involve a breach of Washington’s statute. Therefore, the elements of the California

statute are not broader than those of the Washington statute and the offenses are legally

comparable.

       Because Farnsworth’s California conviction is legally comparable to a most serious offense

in Washington, we need not analyze factual comparability. Farnsworth’s argument fails.

II.    PROOF OF SENTENCING FACTORS

       Farnsworth further argues that the sentencing court violated his right to trial by jury and

his right to due process of law because it sentenced him as a persistent offender based on the

sentencing court’s findings of prior convictions by a preponderance of the evidence, and not on

the basis of a jury’s finding of proof beyond a reasonable doubt. We disagree.

       In making this argument, Farnsworth relies on Blakely v. Washington, 542 U.S. 296, 300-

01, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 476-

77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). But Farnsworth misapprehends the rule of these

cases. “Other than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” Apprendi, 530 U.S. at 490. Even after Blakely, “judges can still find the



                                                7
43167-0-II


existence of prior convictions” to establish sentencing factors. State v. Hughes, 154 Wn.2d 118,

137, 110 P.3d 192 (2005), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212,

216, 222, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). Because Farnsworth’s persistent offender

sentence rests on the fact of his prior convictions, this argument fails.

III.   EQUAL PROTECTION

       Farnsworth argues that his persistent offender sentence violated the Equal Protection

Clause because Washington law arbitrarily discriminates between persistent offenders and other

recidivists by treating “elements” and “sentencing factors” differently. Supp. Br. of Appellant at

47. When the defendant’s prior conviction is an element of an offense, the prior conviction must

be established beyond a reasonable doubt. State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705

(2008) (gross misdemeanor raised to felony when defendant has prior sex offense conviction). But

when the defendant’s prior convictions are sentencing factors that bear on his status as a persistent

offender, the prior convictions must be established by a mere preponderance of the evidence.

RCW 9.94A.500(1), RCW 9.94A.570; State v. Wheeler, 145 Wn.2d 116, 121, 34 P.3d 799 (2001).

       We have consistently rejected this exact argument and we do so again. State v. Reyes-

Brooks, 165 Wn. App. 193, 207, 267 P.3d 465 (2011); State v. Williams, 156 Wn. App. 482, 496-

98, 234 P.3d 1174, review denied, 170 Wn.2d 1011 (2010).

IV.    LEGAL FINANCIAL OBLIGATIONS

       In his SAG, Farnsworth argues the record fails to support the trial court’s boilerplate

finding of his ability to pay his LFOs. Generally, we may decline to review issues raised for the

first time on appeal. RAP 2.5(a). However, we exercise our discretion here and reach the issue.

State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015).




                                                  8
43167-0-II


       The trial court did not impose any discretionary LFOs. It imposed only mandatory fees.

For that reason, Farnsworth argument fails. State v. Mathers, 193 Wn. App. 913, 918-19, 376 P.3d

1163, review denied, 186 Wn.2d 1015 (2016).

       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




                                                           Melnick, J.

We concur:




       Worswick, P.J.




       Johanson, J.




                                               9
