                                                                          FILED 

                                                                        DEC 15,2015 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )        No. 33342-6-111
                     Respondent,             )
                                             )
       v.                                    )
                                             )
ELVIS CAMILLO RENTERIA LOPEZ,                )
                                             )        UNPUBLISHED OPINION
                     Appellant.              )

       KORSMO,   J. -Ajury found Elvis Camillo Renteria Lopez guilty of first degree

robbery, second and third degree assault, and two counts of attempting to elude a police

vehicle. In an unpublished opinion, this court affirmed the convictions, but remanded for

recalculation of Mr. Lopez's offender score and possible resentencing. On remand, the

court found Mr. Lopez's offender score was correctly calculated and declined to modify

his sentence. Mr. Lopez appeals again arguing the State failed to adequately prove his

criminal history for offender score calculation purposes. The State concedes. We accept

the State's concession and again remand for recalculation of Mr. Lopez's offender score

and resentencing, if necessary.

                                         FACTS

       In 2012, ajury found Mr. Lopez guilty of first degree robbery, second and third

degree assault, and two counts of attempting to elude a police vehicle all committed on or
No. 33342-6-III
State v. Lopez


about April 13,2010. On appeal, this court remanded for resentencing because the State

failed to show one of Mr. Lopez's prior felony convictions should be included in his

offender score calculation.

       On remand, the State filed a sentencing memorandum, showing a criminal history

of first degree theft committed in August 1999 and sentenced on March 1,2000; first

degree robbery committed in January 2000 and sentenced on August 25,2000; and

unlawful possession of a controlled substance committed in May 2000 and sentenced on

August 25, 2000. Also attached to the memorandum was a copy of a judgment and

sentence for "mip/mic" entered in Benton County District Court on February 11,2005.

Clerk's Papers at 97. The judgment and sentence provides for a sentence of "365 days in

jail with 363 days suspended." Id. The State argued that because five years did not

elapse between Mr. Lopez's August 25, 2000 felony sentencing, and his February 11,

2005 gross misdemeanor sentencing, the unlawful possession conviction should be

included in his offender score. The State, however, failed to provide evidence showing

Mr. Lopez was not crime-free for five years between February 2005 and the current April

2010 offenses.

      The sentencing court on remand found Mr. Lopez's offender score was properly

calculated and declined to modify his sentence. Mr. Lopez appeals.




                                           2

No. 33342-6-III
State v. Lopez


                                        ANALYSIS

       The issue is whether the sentencing court miscalculated Mr. Lopez's offender

score. He contends the washout provision ofRCW 9.94A.525(2)(c) required the court to

exclude his prior class C felony conviction for possessing a controlled substance because

the State presented no evidence of his release date, and more than five years had elapsed

since the date of his judgment and sentence. The State agrees we should remand to

properly determine Mr. Lopez's offender score and resentence him, if necessary. We

conclude this is an appropriate resolution given the lack of evidence presented by the

State regarding the 2005 offense and the current offenses.

       To assist the parties and court on remand, we note the offender score statute governs

when class C felony convictions may be included in a defendant's offender score. The

relevant subsection provides, in pertinent part, "class C prior felony convictions other than

sex offenses shall not be included in the offender score if, since the last date of release

from confinement ... the offender had spent five consecutive years in the community

without committing any crime that subsequently results in a conviction." RCW

9.94A.525(2)(c). The statute contains a "trigger" clause, which identifies the beginning of

the five-year period. State v. Ervin, 169 Wn.2d 815,821,239 P.3d 354 (2010). Any

offense committed after the trigger date that results in a conviction resets the five-year

clock. Ervin, 169 Wn.2d at 821. The State has the burden to prove prior convictions at

sentencing by a preponderance of the evidence. State v. Hunley, 175 Wn.2d 901, 909-10,

                                              3

No. 33342-6-II1
State v, Lopez


287 P.3d 584 (2012). This includes the burden to prove that prior convictions have not

washed out for the purpose of calculating a defendant's offender score. In re Pers.

Restraint o/Cadwallader, 155 Wn.2d 867,875-76, 123 P.3d 456 (2005).

       This appeal relates to offenses committed on or about April 13,2010. Based on the

above, before including Mr. Lopez's prior class C felony possession conviction in

calculating his offender score, it must first be determined there was no five-year crime free

period at any time from the date of release from confinement until the date the current

offenses were committed. State v. Hall, 45 Wn. App. 766, 769, 728 P.2d 616 (1986).

       In sum, we accept the State's concession and remand for recalculation of Mr.
                                                                                                (
Lopez's offender score, and possible resentencing, in accordance with this court's opinion.
                                                                                                f
      Remanded.
                                                                                                I
                                                                                                I'
                                                                                                t
       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



WE CONCUR:



      Fearing,   JQ )



                                             4

