     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                    cr.t   .


                                    DIVISION ONE                                     '-;

STATE OF WASHINGTON,                             No. 68075-7-

              Respondent,

       v.



DWIGHT BENSON,                                   UNPUBLISHED OPINION

             Appellant.                          FILED: September 16, 2013


      Verellen, J. — Dwight Benson appeals his convictions for felony driving under

the influence (DUI), reckless driving, and driving while license revoked. Benson, who is

African American, argues that the trial court erred by allowing the State to exercise a

peremptory challenge to exclude the only remaining African American juror from the

panel of prospective jurors. Under the existing Batson1 standards, the core question is
whether the prosecutor relied upon prospective jurors' negative experiences with police

as a proxy for race, resulting in purposeful discrimination. Although a peremptory

challenge based on past negative experiences with police has the potential to be

misused as a proxy for race, the totality of the circumstances here supports the trial

court's finding that the prosecutor had a good-faith basis for exercising the peremptory

challenge. The prosecutor did not inquire about any negative experiences with police,

or make any race-based inquiries. Comparative juror analysis does not reveal a

       1Batson v. Kentucky, 476 U.S. 79, 85, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
No. 68075-1-1/2


questionable motive, and there are no other "red flags" suggesting purposeful

discrimination. The trial court correctly applied the existing legal standards, and Benson

fails to demonstrate the trial court's finding that there was no purposeful discrimination

was clearly erroneous. We affirm the conviction, but remand for correction of

sentencing errors.

                                              FACTS

       On April 2, 2011, Benson took pills, drank alcohol, and then drove his car into the

back of Abdul Hared's stopped car. When Hared approached Benson, he smelled

alcohol. Officer Christopher Caron observed that Benson was unsteady on his feet and

smelled of alcohol. Benson's speech was slow and slurred, and he admitted that he

had been drinking.2 He tried to recite the alphabet, but failed. When Officer Nathan
Shopay tried to talk to Benson, Benson had trouble focusing on any subject. Officer

Shopay and Officer Elliott Easton both testified that Benson appeared impaired.3
Benson refused to provide a breath sample. The police did not seek a warrant to obtain

a blood test.


       Benson had three prior DUI convictions and one prior conviction for being in

physical control of a vehicle while under the influence. At the time of the April 2011

accident, his driver's license was revoked based on his convictions for three serious

traffic offenses within a five-year period.



       2Benson assigned error to the trial court's initial failure to enterfindings offact
and conclusions of law in denying his pretrial motion to suppress his statements to
police. However, those findings have since been filed, and Benson raises no issue
relating to the findings in this appeal.
       3In addition to his difficulty with conversation, they both observed that Benson
staggered, had trouble standing, and had alcohol on his breath.
No. 68075-1-1/3


       Based on his four prior qualifying convictions within the previous 10 years,

Benson was charged with felony DUI.4 He was also charged with reckless driving,5 and
driving while license revoked in the first degree.6 Following a jury trial, Benson was
convicted as charged.

       Benson's appeal concerns the State's peremptory challenge of juror 9, an African

American woman. The court began jury selection by asking several questions of the

entire panel of prospective jurors. Then the court allowed the prosecutor and defense

counsel two alternating 20-minute rounds of questioning.

       One of the trial court's general questions was whether any panel member had an

"extremely unpleasant experience with a police officer."7 Seven individuals indicated

they had.8 Of those seven, only three, jurors 9, 16 and 23, were ever seated in the jury
box, where they were subject to peremptory challenge. The prosecutor did not ask any

of the prospective jurors about their negative experiences with police. No one asked

juror 16 or 23 to explain their answer to the negative experiences question.9

       Benson's counsel had the final round of questioning, and asked juror 9 to explain

her negative experiences with police. Juror 9 explained that she had been stopped for

expired license tabs, but the officer appeared to be suspicious of her:

      4RCW46.61.5055(4)(a).
      5 RCW 46.61.500.
      6RCW 46.20.342(1 )(a).
      7Report of Proceedings (RP) (Nov. 16, 2011) at 550.
      8These were jurors 9, 16, 23, 28, 36, 37, and 41.
      9Juror 23, who was dismissed as a result ofa peremptory challenge by the
defense, was asked about his response that he was once in an automobile accident.
He answered, "It was [a] single car accident. I was by myself on the side of the road, on
my way to an Air Force Reserve meeting on a Saturday. An officer responded and got
my license plates." RP (Nov. 16, 2011) at 614.
No. 68075-1-1/4


              JUROR:        My tabs were—I had bought them, but I didn't put
       them on at the time. And I had four children with me. And when he
       stopped me, I had asked what I had did wrong. And he said, "[W]ell, ... I
       noticed your tabs are expired." And I had said, "[0]h." And at that time I
       thought I had bought the tabs. So, I thought okay. But, then, he started to
       kind of looking in my car like there were other things going on. And I
       thought that am I going to get a ticket or, you know, I was willing to give
       my information. But, Ifelt like when I got stopped, okay, I didn't have my
       tabs on, but I also felt like when he stopped me, like he was looking for
       something else. And I had my children with me. Ifelt like, okay, what else
       did I do wrong?

             COUNSEL: Okay. Did the officer treat you fairly?

             JUROR:         I felt I was treated fair in what was asked of me. He
       stopped me. "Did you know that your tabs expired?" Yes, I did, but I did
       not put them on. But, then Ifelt like ... he was looking for something
       else besides that. So, I felt a little, I didn't feel easy about that. So, I
       guess there was kind of a mixed feeling, but I felt like he stopped me,
       okay. I needed to make sure that I had tabs. And then also, you know,
       he was looking kind of past me into my car, like maybe something else
       was going onJ101
Based on the trial court's predetermined procedure for jury selection, the State did not

have another round to pose additional questions to any of the prospective jurors.

      The State exercised three of its peremptory challenges to jurors 4, 13 and 19,

who were reluctant to convict without a numerical blood-alcohol test result. Jurors 4

and 19 were both Caucasian men. Benson did not object to the State's peremptory

challenge to juror 13, an African American woman.11




      10RP(Nov. 16, 2011) at 609-10.
      11 Benson's counsel explained that he did not object to the prosecutor's
challenge for cause of juror 13 "because there was one [African American] left on the
panel and the reason regarding the lack of [any blood] test." RP (Nov. 16, 2011) at 620.
No. 68075-1-1/5


      When the State exercised a peremptory challenge to juror 9, Benson objected,

pointed out that juror 9 was the last remaining African American juror on the panel, and

argued that the State did not have "a nonracial reason" for its challenge.12
      The trial court asked the prosecutor to explain the basis for its peremptory

challenge. The prosecutor argued that in jury selection and pretrial motions, Benson's

counsel had signaled the defense theory that the police investigation was inadequate or

conclusory. The prosecutor was concerned that juror 9 would be more responsive to

that argument based on her own prior negative experience with police:

             Juror number 9,1 completely liked her in my questioning of her, my
      first and second round. Then defense counsel in his second round talked
      to her about experience with a police officer. And she talked about being
      pulled over for something, and how the police officer was looking for
      something else. And I got the impression from what she was saying that
      she believed she was being harassed or interrogated further because she
      is a minority. And that is not an issue in this case. In fact, the victim in
      this case is a minority as well.



              It's my concern that she will have some bad view of officers
      because they focused their investigation on the defendant, who is an
      African American male. The other gentleman [the victim] is an African
      male.1131

       Benson's counsel argued that the prosecutor's explanation was "disingenuous,"

and claimed that other jurors the State accepted were "in a similar circumstance":

      People said they had an interaction with other officers. Juror number 6
      was cited by an officer. That sort of thing. But I don't believe that what
      juror number 9 indicated was to the extent that it really prejudiced her.
      She could have been pulled over, so there is no indication that this person




       12RP(Nov. 16, 2011) at 620.
       13RP(Nov. 16, 2011) at 621.
No. 68075-1-1/6


       had interaction with any of the officers involved in this particular case. So
       it is the defense position that there is not sufficient grounds to strike her.[14]
       In response, the prosecutor explained that she had been saving a peremptory

challenge to exclude juror 28, a Caucasian man, on the same basis. Juror 28 indicated

in response to the trial court's initial general question that he had a prior negative

experience with police. In response to questioning by defense counsel, juror 28

explained further that while working as a truck driver, he felt that a police officer unfairly

blamed him for a collision with another truck. He believed that the officer might have

known the other driver, or harbored a bias against him because his truck had an out-of-

state license plate. The prosecutor explained:

              I wanted to say something for the record. Juror number 28 was
       another person, a Caucasian male, who identified that he had a bad
       interaction with the police officer when he got into an accident with another
       truck. And I was saving a strike for him had we gotten to him on that
       basis.

               I felt similarly to juror number 9. They both seemed to have a
       situation where they felt like they were the ones who were singled out and
       being picked on.

                Iwas certainly going to strike him, if we had gotten there.'151
       The trial court stated that it understood the State's concern with having jurors

with prior negative experiences with police, but was sensitive that using that factor to

exclude jurors could be discriminatory in some cases:

       I obviously don't know what the defense theory is, but we are not talking
       about a situation where somebody is going to allege that someone was
       stopped unfairly by police.




       14RP(Nov. 16, 2011) at 622.
       15RP(Nov. 16, 2011) at 622.
No. 68075-1-1/7


              There may be, however, an allegation that the investigation was
       inadequate by the police, especially in a case where we don't have a
       [blood-alcohol test] result.

                So I can see why the State would care about having jurors who
       have not had negative interactions with the police. On the other hand, one
       of the things that is so troubling about excusing African Americans from a
       jury trial is that they have had the experience [that] not necessarily all our
       other jurors have had. I am very mindful of that.

                In this situation, I think this is a very tough case, to be honest....
       I just think that if juror 28 [was] African American, I would have been more
       inclined to think that a challenge was not motivated]. . . by the nature of
       the defense.1161

       In addressing the trial court's concerns, the prosecutor reemphasized that the

basis for its peremptory challenge was that it anticipated a defense argument that the

officers conducted a cursory or incomplete investigation:

       Defense counsel kind of pushed that fact of the officer not really
       investigating or doing the test with the other driver or anything like that.
       So I do think that becomes a significant issue. I want to be very clear.
       That's why, that's the reason for my striking juror number 9.[17]
       Based on the prosecutor's explanation, the trial court concluded that the State's

peremptory challenge to juror 9 was reasonable, was not based on race, was not the

result of purposeful discrimination, and was made in good faith.18 Juror 9 was excused

from the jury panel.

                                       DISCUSSION


                                     Batson Challenge

       Benson assigns error to the trial court's determination that the prosecutor did not

engage in purposeful discrimination. Benson fails to demonstrate reversible error.


       16 RP (Nov. 16, 2011) at 623-24.
       17RP(Nov. 16, 2011) at 624.
       18RP(Nov. 16, 2011) at 626.
No. 68075-1-1/8


        The equal protection clause guarantees a defendant the right to be tried by a jury

selected free from racial discrimination.19 A prosecutor's use of a peremptory challenge

based on race violates a defendant's right to equal protection.20 The United States
Supreme Court in Batson established the test to determine whether a juror was

peremptorily challenged pursuant to discriminatory criteria. First, the defendant must

establish a prima facie case ofpurposeful discrimination;21 second, the burden shifts to
the State to articulate a race-neutral explanation for challenging the juror;22 and third,
the trial court must decide whether the defendant has demonstrated purposeful

discrimination.23 The ultimate burden of persuasion that there has been purposeful

discrimination rests with the defendant.24 The trial court's determination as to the

existence ofpurposeful discrimination will be upheld unless clearly erroneous.25 In
State v. Saintcalle, our Supreme Court recently advocated a change to the existing

Batson procedures in Washington, but declined to make any changes on the briefing




        19 U.S. Const, amend. XIV; Batson, 476 U.S. at 85.
      20 State v. Cook, No. 67332-7-I, 2013 WL 2325117, at *1 (Wash. Ct. App.
May 28, 2013) (citing Batson, 476 U.S. at 86).
        21 Batson, 476 U.S. at 93-96.
        22 Id, at 97-98.
        23 IdL at 98.
        24 Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006)
(citing id.).
        25 State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008): see also United
States v. Roberts, 163 F.3d 998, 999 (7th Cir. 1998).

                                              8
No. 68075-1-1/9



before it.26 The lead opinion confirmed the deference given to the trial court under the
existing "purposeful discrimination" standard:

       A trial court's decision that a challenge is race-neutral is a factual
       determination based in part on the answers provided by the juror, as well
       as an assessment of the demeanor and credibility of the juror and the
       attorney. Batson, 476 U.S. at 98 n.21. The defendant carries the burden
       of proving purposeful discrimination. Id. at 93. The trial judge's findings
       are "accorded great deference on appeal" and will be upheld unless
       proved clearly erroneous. Hernandez v. New York. 500 U.S. 352, 364,
       111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). Deference to trial court
       findings is critically important in Batson cases because the trial court is
       much better positioned than an appellate court to examine the
       circumstances surrounding the challenge. Further, deference is important
       because trial judges must have some assurance that the rest of the trial
       will not be an exercise in futility if it turns out an appellate court would
       have ruled on a Batson challenge differently.'271
       Under the existing Batson standard, where the State articulates a race-neutral

explanation for its challenge, the trial court is not required to analyze the first step of

whether the defendant established a prima facie case of purposeful discrimination.28

Here, the State explained that juror 9's past negative experience with a police officer

would potentially make her more likely to accept a defense argument that the officers

focused on collateral considerations and did not conduct a thorough investigation of

Benson. The second step of the process does not demand an explanation that is

persuasive or plausible: "'At this [second] step of the inquiry, the issue is the facial




       26 No. 86257-5, 2013 WL 3946038, at *12 (Wash. Aug. 1, 2013) (indicating it
would consider changing the Batson framework based on a future fully-briefed appeal
advocating a new standard, or by court rule or statute).
       27 kL
       28 See.e.g., State v. Luvene. 127 Wn.2d 690, 699, 903 P.2d 960 (1995) (citing
Hernandez, 500 U.S. at 359).
No. 68075-1-1/10


validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the

prosecutor's explanation, the reason offered will be deemed race neutral.'"29

       Benson's argument that the State's proffered rationale was a pretext and mere

proxy for race concerns the third step, which required the trial court to consider the

State's explanation and determine whether the defendant has demonstrated purposeful

discrimination.30 The prosecutor's explanation "must be viewed in the totality of the
prosecutor's comments."31 The reviewing court considers the overall circumstances,
including any red flags of a discriminatory motive.32
       Benson contends that the trial court erred by accepting the prosecutor's

challenge of juror 9 based on her past negative experience with police, claiming that the

proffered rationale was a pretext and mere proxy for race. However, the record does

not support Benson's argument.

      A prosecutor's focus on jurors' perceptions of police could be an improper proxy

for race in jury selection. For example, in State v. Bishop, a case cited by Benson, the

prosecutor excused a juror because she lived in a predominantly African American

neighborhood, arguing that she would likely be anesthetized to violence and believe that




       29 Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995)
(alteration in original) (quoting Hernandez, 500 U.S. at 360).
       30 Batson, 476 U.S. at 98; see also Reed v. Quarterman, 555 F.3d 364, 368 (5th
Cir. 2009); Purkett, 514 U.S. at 768 ("implausible or fantastic justifications may (and
probably will) be found to be pretexts for purposeful discrimination").
       31 Cook, 2013 WL 2325117 at *3.
       32 See id. (prosecutor's peremptory challenge based in part on defense counsel's
use of the term "brother" when speaking to an African American juror and prosecutor's
purportedly "confusing" one African American juror with another "raises a red flag that
there is some discriminatory intent").

                                            10
No. 68075-1-1/11


police are unfair.33 This rationale was rejected as "little more than the assumption that
one who lives in an area heavily populated by poor black people could not fairly try a

black defendant."34 Similarly, in Turnbull v. State, a second case cited by Benson, the
prosecutor asked jurors if they thought that police racially profile people.35 Five African

American individuals answered affirmatively, and the State exercised peremptory strikes

against four of them and a challenge for cause as to the fifth.36 The Turnbull court

concluded that the State's question was "subterfuge," noting that racial profiling was not

an issue in the case and that the question was not used to elicit the jurors' feelings

about law enforcement.37

       Because the total circumstances here are distinguishable from cases where

prosecutors used pretextual criteria to purposefully discriminate, Bishop, Turnbull and

similar pretext decisions are not persuasive. Here, the State did not initiate the inquiry

as to negative experiences with police, did not inquire of any prospective juror regarding

such negative experiences, and did not ask any juror any questions related to race. In

addition, the State's belief that Benson would attempt to discredit the police

investigation was realistic and related to the facts of the case. The primary witnesses

were police officers, and Benson's counsel's questions to potential jurors signaled that

he would dispute the adequacy of the investigation.38 These circumstances are not


      33 959 F.2d 820, 825 (9th Cir. 1992).
      34 ]d
      35 959 So.2d 275, 276 (Fla. App. 3 Dist. 2006).
      36 Id
      37 jd at 276-77.
      38 At trial, Benson did challenge the adequacy ofthe police investigation for
failing to photograph the accident scene and obtain a blood test. Benson's counsel
                                            11
No. 68075-1-1/12


analogous to those in which a prosecutor employs a "ruse" or "subterfuge" to drum up

thinly-veiled racially discriminatory reasons to strike a juror.

       A comparison of the State's treatment of other jurors here likewise fails to

support a claim of purposeful discrimination. The State's reason for using a peremptory

strike against a prospective juror may be a pretext for purposeful discrimination, and

thus not race neutral, if other prospective jurors who made similar assertions were

seated as jurors.39 No two potential jurors are identical, but a meaningful comparison
between jurors requires careful consideration of the precise information in the record.40

Thus, if a prosecutor's proffered reason for striking a minority panelist applies just as

well to an otherwise similar nonminority panelist who is permitted to serve, "that is

evidence tending to prove purposeful discrimination to be considered at Batson's third

step."41 And "[i]f the State asserts that it struck a black juror with a particular
characteristic, and it also accepted nonblack jurors with that same characteristic, this is

evidence that the asserted justification was a pretext for discrimination, even if the two

jurors are dissimilar in other respects."42

       Benson suggests that all seven of the prospective jurors who indicated that they

had an unpleasant experience with police were comparable to juror 9. But of those

seven, only jurors 9 and 16 were ever subject to challenge by the prosecutor.

Accordingly, only juror 16 is potentially comparable. But juror 16 was never asked to


developed these arguments both on cross-examination of the officers and again in
closing argument.
       39 Cook, 2013 WL 2325117 at *3.
       40 See Reed, 555 F.3d at 375-81.
       41 Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005).
       42 Reed. 555 F.3d at 376.

                                              12
No. 68075-1-1/13


explain his unpleasant experience. The record does not support the proposition that

juror 16 harbored the same belief that led to the prosecutor's peremptory challenge of

juror 9, i.e., the perception that the police officers' investigation was inadequate due to

collateral circumstances. The prosecutor had no opportunity to follow up with juror 16 in

light of juror 9's answers to defense counsel's questions in the final round of

questioning. Juror 16 and juror 9 both reported negative experiences with police. But

this, of itself, was not the basis for the challenge to juror 9. Benson offers no authority

that the prosecutor had an obligation to anticipate the need to build a record as to juror

16.43

        In the trial court and on appeal, the defense suggests juror 6 is a comparable

juror. But juror 6 did not respond when the judge asked whether jurors had had an

extremely unpleasant experience with the police and described his experience with

police as "extremely pleasant."44 Juror 6 described an incident where he lost control of
his car on the freeway and crashed, but the police responded and "treated me well."45

This is not comparable to juror 9's experiences or answers.

        Notably, the State had the same rationale for excluding juror 9, an African

American, and juror 28, a nonminority. Both were more likely, based on their individual

experiences, to be more responsive to a defense argument that the police officers who

arrested Benson and investigated his offense allowed their biases to influence their

investigation. This strongly supports the trial court's conclusion that the State's


        43 Failure to explore a topic in voir dire may be some evidence of pretext, but not
where there are reasonable explanations for the failure. See Puckett v. Epps, 641 F.3d
657, 664-65 (5th Cir. 2011), cert, denied, 132 S. Ct. 1537, 182 L. Ed. 2d 174 (2012).
        44RP(Nov. 16, 2011) at 550.
        45RP(Nov. 16, 2011) at 614.

                                             13
No. 68075-1-1/14


challenge was not based on race. As recognized by the trial court, juror reactions to the

limited investigation by the police in this case were legitimate concerns for the

prosecutor. The record on appeal does not reveal disparate treatment based on

comparative juror analysis.

       Finally, in making its determination, the trial court also had the opportunity to

observe the prosecutor's demeanor. "Batson requires the judge to determine whether a

race-neutral reason offered for a challenge is honest, and [trial court] judges are much

better situated than appellate judges to evaluate the honesty of the lawyers who

practice in [trial] court."46 And there were no red flags based upon other conduct by the
prosecutor suggesting a racial motive. A focus on general attitudes toward police and

past negative experiences with police might be used as proxy for race.47 But here, the
specific responses by juror 9 and the explanation offered by the prosecutor were

analyzed by the trial court. The trial court determined that the prosecutor had a good

faith concern that juror 9 would be predisposed to the defense theory that police did not

thoroughly and objectively investigate Benson's DUI, a concern the prosecutor also had

regarding a nonminority member of the jury panel. The record supports the factual


       46 Roberts. 163 F.3d at 1000 (even where "jury selection raises substantial
questions about the conduct and candor of the prosecutor who selected th[e] jury," the
trial court's determination that the prosecutor's rationale was valid "must be accepted").
       47 There are several decisions accepting consideration of past negative police
experiences as a proper basis for exercise of peremptory challenges under Batson.
See, e.g.. State v. Rhodes. 82 Wn. App. 192, 202-03, 917 P.2d 149 (1996) (negative
contact with police was sufficient race-neutral explanation); People v. Booker, 51 Cal.
4th 141, 245 P.3d 366, 390 n.13, 119 Cal. Rptr. 3d 722 (2011); People v. Avila. 38 Cal.
4th 491, 133 P.3d 1076, 1113-17, 43 Cal. Rptr. 3d 1 (2006); People v. Gabler. 958 P.2d
505, 508 (Colo.App. 1997); State v. Jackson. 73 Conn. App. 338, 808 A.2d 388, 399-
402 (2002); State v. Pendleton. 725 N.W.2d 717, 726 (Minn. 2007); Mitleider v. Hall.
391 F.3d 1039, 1048 (9th Cir. 2004); United States v. Vaccaro. 816 F.2d 443, 457 (9th
Cir. 1987).

                                             14
No. 68075-1-1/15


determination by the trial court that the prosecutor did not engage in purposeful

discrimination. Benson fails to demonstrate that the trial court ruling was clearly

erroneous. Accordingly, we affirm his convictions.

                                         Sentence

       The State concedes that remand is required for the trial court to strike the term of

community custody. The State's concession is well taken. The trial court imposed a

60-month term of incarceration for the felony DUI, the statutory maximum.48 The trial

court was required under RCW 9.94A.701(9) to reduce his term of community custody

to zero.49

       Benson also correctly claims that the State failed to prove his offender score by

providing certified copies of his prior judgments and sentences, and failed to prove that

his other prior convictions did not "wash out" of his score.50 At his sentencing hearing,
Benson agreed that his offender score should be calculated with the score of 9 plus, the

maximum offender score class. The trial court calculated Benson's offender score as


       48 RCW 46.61.502(6); RCW9A.20.021(1)(c)
       49 State v. Bovd, 174Wn.2d 470, 473, 275 P.3d 321 (2012); State v. Winborne,
167 Wn. App. 320, 329, 273 P.3d 454, review denied. 174 Wn.2d 1019 (2012).
       50 RCW 9.94A.525(2)(d) and (e) provide that "serious traffic convictions shall not
be included in the offender score if, since the last date of release from confinement...
pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender
spent five years in the community without committing any crime that subsequently
results in a conviction" and that [i]f the present conviction is felony driving while under
the influence of intoxicating liquor or any drug (RCW 46.61.502(6)) or felony physical
control of a vehicle while under the influence of intoxicating liquor or any drug (RCW
46.61.504(6)), prior convictions of felony driving while under the influence of intoxicating
liquor or any drug, felony physical control of a vehicle while under the influence of
intoxicating liquor or any drug, and serious traffic offenses shall be included in the
offender score if: (i) The prior convictions were committed within five years since the last
date of release from confinement... or entry of judgment and sentence; or (ii) the prior
convictions would be considered 'prior offenses within ten years' as defined in
RCW 46.61.5055."

                                            15
No. 68075-1-1/16


16 based on the agreement of counsel, the four prior DUI convictions proved at trial,

and the prosecutor's statement of Benson's offender history.

      The State must prove a defendant's criminal history by a preponderance of the

evidence.51 The trial court "may rely on no more information than is admitted by the
plea agreement, or admitted, acknowledged, or proved in a trial or at the time of

sentencing."52
      To establish the existence of a [prior] conviction, a certified copy of the
      judgment and sentence is the best evidence. The State may introduce
      other comparable evidence only if it shows that the writing is unavailable
      for some reason other than the serious fault of the proponent. In that
      case, comparable documents of record or trial transcripts may suffice.[53]
A defendant generally '"cannot waive a challenge to a miscalculated offender score.'"54
      The State was required to prove the validity of Benson's prior convictions, and to

demonstrate that the convictions had not washed out. Because the four prior DUI

convictions were elements of the felony DUI offense that Benson stipulated to at trial,

any argument about the validity of those four convictions is waived. However, their

inclusion in Benson's offender score is a different issue. The State failed to prove by a

preponderance of evidence that none of the prior convictions had washed out under the

special washout rules applicable to felony DUI.55 This was error. Benson could not

      51 State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999).
      52 RCW 9.94A.530(2).
      53 State v. Rivers, 130 Wn. App. 689, 698-99, 128 P.3d 608 (2005) (citing State
v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002)).
      54 State v. Ross, 152 Wn.2d 220, 231, 95 P.3d 1225 (2004) (quoting In re Pers.
Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002)).
      55 State v. Morales, 168 Wn. App. 489, 492-501, 278 P.3d 668 (2012) (where
felony DUI conviction falls within provisions of RCW46.61.502(6)(a), sentencing court
must calculate defendant's offender score pursuant to washout provision of
RCW 9.94A.525).

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No. 68075-1-1/17


agree to an incorrect offender score that ignored those washout rules.56 We remand for
the trial court to determine the correct offender score.57

       We affirm the convictions, and remand for the limited purposes of allowing the

State to prove Benson's offender score and to correct the erroneous sentence.




WE CONCUR:




       56 State v. Weaver, 171 Wn.2d 256, 259-60, 251 P.3d 876 (2011) (where
defendant did not object to offender score calculation at sentencing but contested the
proof of criminal history used to determine his offender score on appeal, the issue was
not waived because defendant did not "affirmatively acknowledge" criminal history);
State v. Mendoza, 165 Wn.2d 913, 929, 205 P.3d 113 (2009) (State bears the burden to
prove the existence of prior convictions by a preponderance of the evidence; "a
defendant cannot waive a challenge to a miscalculated offender score").
       57 Where, as here, there was no objection at sentencing and the State
consequently has not had an opportunity to put on its evidence, it is appropriate to allow
additional evidence at resentencing. Mendoza, 165 Wn.2d at 930; State v. Bergstrom,
162 Wn.2d 87, 97-98, 169 P.3d 816 (2007).

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