(dissenting)
¶19 Kevin Case was convicted of felony violation of a no-contact order in violation of RCW 26.50.110(5). That subsection (5) enhances the crime from a misdemeanor to a felony “if the offender has at least two previous convictions for violating the provisions of an order issued under [specifically listed statutes}!’ (Emphasis added.) Fifteen years ago, when dealing with an identically structured statute, we held that this prerequisite to conviction constitutes an element of the crime. State v. Oster, 147 Wn.2d 141, 147-48, 52 P.3d 26 (2002). Without overruling or even acknowledging its conflict with that holding, the majority seems to conclude either that this prerequisite to conviction is not an element or that the State need not prove this element of this crime to a jury beyond a reasonable doubt.
¶20 Either holding would conflict with controlling prior precedent. The first one conflicts in principle with Oster *98and its progeny, as discussed in Section 2 below. The second one conflicts directly with not just In re Winship,7 the seminal Supreme Court decision holding that all elements must be proved to the jury beyond a reasonable doubt, but also with United State v. Gaudin,8 which held that Win-ship’s general rule applies even where, as here, the element contains both legal and factual parts. This is discussed in Section 3 below. This court should follow Winship’s and Gaudin’s constitutional holdings. I therefore respectfully dissent.
ANALYSIS
1. Introduction
¶21 The parties here stipulated that Case had two prior convictions for violations of a protective order “under Washington State Law.” Verbatim Report of Proceedings (VRP) (Mar. 17-18, 2013) at 66; Ex. 5. But the stipulation did not specify the statutes under which these protective orders were issued. And the statutory prerequisite to conviction under RCW 26.50.110(5) is not prior convictions for violating protective orders issued under any “Washington State law.” Instead, RCW 26.50.110(5)’s statutory prerequisite to conviction is that “the offender has at least two previous convictions for violating the provisions of an order issued under this chapter, chapter 7.90, 9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020.” (Emphasis added.)
¶22 Importantly, the first phrase—a prior conviction “under Washington State law”—is not synonymous with the statutory phrase “the offender has at least two previous convictions for violating the provisions on an order issued under [specifically listed statutes].” RCW 26.50.110(5). The difference is that the statutory phrase limits the qualifying *99enhancing prior convictions to the ones specifically listed. And there are other, unlisted, statutes under which protective orders might have been issued. E.g., RCW 10.14.080 (temporary antiharassment protection order); RCW 26.44-.150(1) (temporary restraining order against person accused of abusing a child).
¶23 The stipulation was therefore not narrow enough to establish that the prior convictions were qualifying convictions.
2. The Majority’s Holding That the Prior-Qualifying-Convictions Prerequisite to Conviction Is Not an Element Conflicts with Recent Decisions of This Court
¶24 We granted review in this case to decide whether the existence of those two qualifying prior convictions constitutes an element of the crime charged here, i.e., felony violation of a no-contact order in violation of RCW 26.50-.110(5), which must be proved to a jury beyond a reasonable doubt. The majority answers that question by saying, “Whether the prior convictions qualify under RCW 26.50-.110(5) is ... a question of law to be decided by a judge, not a jury.” Majority at 92.9 But all elements must be proved to a jury beyond a reasonable doubt. Winship, 397 U.S. at 364; State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). So either the majority is treating the existence of two prior qualifying convictions as something other than an element, or the majority is making a brand new exception to the rule that all elements must be proved to the jury.
¶25 Either holding violates controlling precedent. If the majority is holding that the prior-qualifying-conviction pre*100requisite is not really an element, then the majority’s holding conflicts with controlling decisions of this court.10 Almost 15 years ago, in Oster, we held that the prior conviction requirement in a similarly structured statute constituted an element of the crime. 147 Wn.2d at 147-48. To be sure, the main question in Oster was whether the prior convictions had to be listed in the to-convict instruction or whether placement in some other instruction sufficed. Id. at 143. But before the court could reach that question, it had to decide whether the prior convictions were indeed elements. On that preliminary point, our court held, “As set forth in the statute, the prior convictions function as an element of the felony violation of a no contact order.” Id. at 146.
¶26 We followed Oster’s holding in State v. Roswell, 165 Wn.2d 186, 196 P.3d 705 (2008). In Roswell, the statute at issue—former RCW 9.68A.090 (2004)—elevated the crime of communicating with a minor for immoral purposes from a misdemeanor to a felony. The issue for our court was whether a defendant was entitled to bifurcate the trial between judge and jury to keep the prior convictions evidence away from the jury. Id. at 190. But before the court could reach that question, it decided whether the prior convictions were actually elements or were, instead, simply aggravating sentencing factors. Id. at 193-94. The court held that the prior convictions prerequisite to a current conviction of this felony constituted an element. We explicitly stated, “Despite the similarities between an aggravating factor and a prior conviction element, under RCW *1019.68A.090(2), a prior sexual offense conviction [was] an essential element that must be proved beyond a reasonable doubt.” Id. at 192.11
¶27 If the majority’s decision—that “the prior convictions qualify under RCW 26.50.110(5) is ... a question of law to be decided by a judge, not a jury”—means that the prior-qualifying-convictions prerequisite is not an element, then that holding conflicts with our decisions in Oster and Roswell. Majority at 92. And the majority gives no explanation for this conflict and silent overruling of that prior precedent.
3. The Majority’s Holding That the State Need Not Prove the Prior-Qualifying-Convictions Element to the Jury beyond a Reasonable Doubt Because R Is Mainly Legal, Rather Than Factual, Conflicts with Controlling Supreme Court Precedent
¶28 If the majority instead means to say that the prior-qualifying-convictions prerequisite remains an element, but that it is an element that implicates “a question of law” and that such a legal question—element or not—is “to be decided by a judge, not a jury,” then this holding conflicts with a different line of cases.
¶29 Specifically, it conflicts with the United States Supreme Court’s decision in Gaudin. 515 U.S. at 511-15. In Gaudin, the Supreme Court held that all elements, whether they are characterized as legal or factual, must be proved to the jury beyond a reasonable doubt. Id. (rejecting the gov*102ernment’s position that since the element of “materiality” in a perjury prosecution is “a ‘legal’ question,” that element can be proved to a judge rather than a jury).
¶30 The parties’ focus on our decision in Miller in support of a different rule is therefore misplaced. Gaudin’s holding on this point of federal constitutional law is controlling; any contrary, and less protective, implications in Miller are not. And Gaudin clearly stated, as the dispositive holding of that case, that “all elements” of an offense, whether characterized by the government as legal or factual, are for the jury. Id. at 519.12
4. The Majority’s Holding That the Stipulation Sufficed To Prove This Factor, Even If It Were an Element, Conflicts with the Rule That What the Parties Stipulate to Is Determined by the Four Corners of the Stipulation
¶31 The majority spends little time on these important points. Instead, it engages in a lengthier discussion of how Case really stipulated to the prior-qualifying-convictions thing, anyway.
¶32 It is certainly true that a defendant can stipulate to facts that prove an element of the crime, and that such a stipulation constitutes a waiver of the right to require the state to prove that element. State v. Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 (2006) (“ A stipulation is [a]n express waiver .. . conceding for the purposes of the trial the truth of some alleged fact, with the effect that one party need offer no evidence to prove it and the other is not allowed to disprove it.’ ” (alterations in original) (internal quotation marks omitted) (quoting Key Design, Inc. v. Moser, 138 Wn.2d 875, 893-94, 983 P.2d 653 (1999))). And it is also true that in this case the trial judge, referring to the stipulation, *103said, “That relieves the State from the necessity of having to go into detail about those convictions.” VRP (Mar. 17-18, 2013) at 6.
¶33 The majority asserts that this stipulation “appeared to establish that Case agreed he had two prior qualifying convictions under RCW 26.50.110(5) as alleged in the charging information.” Majority at 92 (first emphasis added).
¶34 That’s not how it appears to me. The reason is that what the parties stipulate to is generally determined by the four corners of the stipulation itself. See Braxton v. United States, 500 U.S. 344, 350, 111 S. Ct. 1854, 114 L. Ed. 2d 385 (1991) (holding that courts review stipulations “just as we would review a determination of meaning and effect of a contract, or consent decree, or proffer for summary judgment”); Stell v. State, 496 S.W.2d 623, 626 (Tex. Crim. App. 1973) (construing stipulations narrowly). And there is nothing about the specifically listed qualifying crimes prerequisite within the four corners of the stipulation.
5. The Majority’s Holding That the Stipulation Sufficed To Prove This Factor, Even If It Were an Element, Conflicts with the Rule That in a Criminal Case, the Government Must Accept the Risk of Any Deficiency in a Stipulation
¶35 Further, if the government accepts a stipulation to a particular fact but the stipulation is inadequate, then the government must accept that risk. Tompkins v. State, 278 Ga. 857, 857, 607 S.E.2d 891 (2005) (refusing to imply from defendant’s stipulation to a bench trial that the stipulation also included a stipulation regarding venue); United States v. Hollis, 506 F.3d 415, 419-20 (5th Cir. 2007) (refusing to imply from defendant’s stipulation to prior convictions that these prior convictions were valid or constitutionally obtained so as to preclude the defendant from challenging the validity of those convictions at sentencing under the federal Armed Career Criminal Act of 1984 (18 U.S.C. § 924(e))); *104Gooding v. Stotts, 856 F. Supp. 1504, 1508 (D. Kan. 1994) (“If the proof is lacking, regardless of whether a case is tried to the court on stipulated facts or to a jury, on either stipulated facts or in a trial filled with in-court testimony, the result is the same—the defendant is found not guilty.”); State v. Behr, No. A07-2166, 2009 WL 233844, at *2, 2009 Minn. App. Unpub. LEXIS 150, at *3 (Feb. 3, 2009) (unpublished) (holding there was insufficient evidence to convict defendant based on a prior crimes stipulation because the stipulation did not indicate whether the convictions occurred within the requisite time period); McClure v. State, No. 12-05-00209-CR, 2006 WL 1791628, at *2-3, 2006 Tex. App. LEXIS 5907, at *5 (Ct. App. June 30, 2006) (unpublished) (explaining that a specific stipulation regarding only one part of a prior conviction element does not necessarily include a stipulation as to the remaining parts).
¶36 In fact, most of the authority cited immediately above addressing this issue arose in the same context presented here: stipulations entered in cases where a prior conviction was a factor that increased the severity of a crime. E.g., Hollis, 506 F.3d at 419-20; State v. Jabbar, No. A14-0076, 2015 WL 303632, at *3, 2015 Minn. App. Unpub. LEXIS 77, at *7 (Jan. 26, 2015) (unpublished); Behr, 2009 WL 233844, at *2, 2009 Minn. App. Unpub. LEXIS 150, at *3; McClure, 2006 WL 1791628, at *2-3, 2006 Tex. App. LEXIS 5907, at *5.
¶37 Under this authority, Case’s stipulation was insufficient to establish that he had two qualifying prior convictions.
¶38 The State has made the backup argument that Case invited this error by signing the stipulation and should not be able to benefit from his own inadequate stipulation. But it was not just his stipulation—the State was the party that offered it (VRP (Mar. 17-18, 2013) at 66; Ex. 5), the defense did not object, and both parties signed it. The invited error doctrine does not apply because the stipulation was introduced by the State as part of its evidence, and thus Case *105cannot be blamed for “setting up” the error. State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996) (explaining that the invited error doctrine prohibits a party from setting up an error and then complaining of it on appeal).
CONCLUSION
¶39 For these reasons, I would affirm the decision of the Court of Appeals that the evidence was insufficient to convict.
Fairhurst, J., concurs with Gordon McCloud, J.After modification, further reconsideration denied January 20, 2017.
397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
515 U.S. 506, 514, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995).
The majority begins with several assertions about Case’s prior bad acts. E.g., majority at 87 (“Case is no stranger to . . . the consequences of violating a no-contact order.’’), 88 (“At the time of charging, Case already had 13 prior convictions for violating a no-contact order.’’). These assertions are not relevant to the legal question that we must decide—that is, whether the rule that the State must prove all the elements of the crime to a jury, beyond a reasonable doubt, no matter how bad of an actor the defendant is—applies to the element at issue in this case.
The concurrence is certainly correct that following Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), a prior criminal conviction does not have to be treated as an element of the crime under the Fourteenth Amendment to the United States Constitution. Concurrence at 96. That is a holding about the limits of the federal constitution’s protections. But our court’s own prior precedent held that the prior convictions prerequisite contained in RCW 26.50.110(5) was an element of the crime based on state statutory interpretation. Oster, 147 Wn.2d at 147-48; State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008). Apprendi does not affect or diminish our state Supreme Court cases interpreting state statutory law to provide greater protections of individual rights than the United States Constitution.
In State v. Miller, decided in 2005, we addressed a related question: whether the State had to prove, as an element of the offense, that the no-contact order violated was valid. 156 Wn.2d 23, 25-26, 123 P.3d 827 (2005). The parties agreed that the no-contact order must be valid in order to support a conviction. Id. at 25. They disagreed, however, about whether the validity of the order was a question of law for the judge or a question of fact for the jury. Id. We held that the “ ‘existence’ ” of a no-contact order was an element for the jury but the “ ‘validity’ ” of that order was a question of law for the court. Id. at 24. We did not address whether the existence of an actual no-contact order of the sort listed in the statute—one issued under certain statutory provisions and not others—was an element or not.
Neither Miller nor State v. Carmen, 118 Wn. App. 655, 668, 77 P.3d 368 (2003), also cited by the parties, discussed Gaudin s 1995, constitutional, holding. Nor did the parties to this case. But Gaudin still compels the conclusion that if the existence of a prior qualifying conviction is an element of felony violation of a no-contact order under RCW 26.50.110(5), then the entire element—including whether the convictions arose from a qualifying statute—is for the jury to decide.