                                                                                                                 F !L   D
                                                                                                         COL   T OF
                                                                                                                     APPEALS
                                                                                                               DIVISION 11

      IN THE COURT OF APPEALS OF THE STATE OF WASHING
                                                                                                       2014 JAH 22 AM 9, 19
                                                                                                        hA       11 rN,
                                                    DIVISION II
                                                                                                                 ily
STATE OF WASHINGTON,                                                              No. 44678 -2 -II


                                          Respondent.


         V.



SHAWN VINCENT BALETO BIRD,                                                 UNPUBLISHED OPINION




         PENOYAR, J. —        Shawn Vincent Baleto Bird appeals his sentence for conspiracy to deliver

methamphetamine with an enhancement for commission while in a jail facility and two counts of

unlawful possession of a firearm. The State concedes that the trial court erred when it imposed a

jail   zone"    sentencing        enhancement       for his conspiracy      conviction.       Accepting the State' s

concession, we remand with instructions to strike the sentencing enhancement from Bird' s

judgment and sentence.


         The State alleged the conspiracy to deliver methamphetamine was committed in a jail or

correctional facility, which would require an 18 -month sentencing enhancement under RCW
9. 94A.533( 5)(   a).    This statute lists seven crimes to which the enhancement applies, but not the

crime Bird was convicted of committing.

         RCW 9. 94A.533( 5) by its own terms only applies to anticipatory offenses under chapter

9A.28 RCW.              Because Bird         was   convicted   under   RCW 69. 50. 407, the enhancement was


improperly      applied    to him.        State v. Mendoza, 63 Wn. App. 373, 377 -78, 819 P. 2d 387 ( 1991)

 provisions     that    applied   to "`   persons convicted of ...     conspiracy under chapter 9,4. 28 RCW" did

not    apply to   a     conviction    under     RCW 69. 50. 408) ( quoting former RCW 9. 94A.410 ( 2000))


 emphasis      in the   original).    The    enhancement should      therefore   be   stricken.
44678 -2 -II




        We remand to the trial court to strike the sentencing enhancement from Bird' s judgment

and sentence.




        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 pursuant to RCW 2. 06. 040, it

is so ordered.




We concur:




                             V


         Johanson, J.




                        OF


         Maxa, J.




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