### FILED DEC 15,2015 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III
INTHE 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### v. ) ) ELVIS CAMILLO RENTERIA LOPEZ, ) ) UNPUBLISHED OPINION Appellant.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. -Ajuryfound Elvis Camillo RenteriaLopez guilty offirst degree robbery, second andthird degree assault, and two counts ofattemptingto elude a police vehicle. In anunpublished opinion, this court affirmedthe convictions, butremanded for recalculation ofMr. Lopez's offender score andpossible resentencing. Onremand, the court found Mr. Lopez's offender score was correctly calculated and declined to modify his sentence. Mr. Lopezappeals again arguingthe State failed to adequatelyprove his criminal history for offender score calculation purposes. The State concedes. We accept the State's concession and againremand for recalculation ofMr. Lopez's offender score andresentencing, ifnecessary. FACTS In 

### 2012, ajury found Mr. Lopez guilty offirst degreerobbery, second and third degree assault, andtwo counts ofattemptingto elude a policevehicle all committed on orNo. 33342-6-III State 

### v. Lopez
aboutApril 13,2010. On appeal, this court remanded for resentencingbecausethe State failed to show one ofMr. Lopez'sprior felony convictions should be included inhis offender score calculation. Onremand, the State filed a sentencingmemorandum, showing a criminal history offirst 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 ofa controlled substance committed in May 2000 and sentenced on August 25, 2000. Also attached to the memorandum was a copy ofajudgmentand sentence for "mip/mic" entered in Benton County DistrictCourt onFebruary 11,2005. Clerk's Papers at 97. Thejudgment and sentenceprovides for a sentence of"365 days in jailwith 363 days suspended." Id. The State argued thatbecause 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 currentApril 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.

2No. 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 priorclass C felony conviction for possessing a controlled substance because the Statepresented no evidence ofhis release date, and more than five years had elapsed since the date ofhisjudgment and sentence. The State agrees we should remand to properly determine Mr. Lopez's offender score and resentence him, ifnecessary. We conclude this is an appropriate resolution given the lack ofevidence 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 pertinentpart, "class C prior felony convictions other than
sex offenses shall not be included in the offender score if, since the last date ofrelease 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 apreponderance ofthe evidence. State v. Hunley, 175 Wn.2d 901, 909-10, 3No. 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 ofcalculating a defendant's offender score. In re Pers. Restrainto/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 includingMr. 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 ofrelease 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 acceptthe State's concession and remand for recalculation ofMr. 

## ( Lopez's offender score, andpossible resentencing, in accordance with this court's opinion. 

# I f Remanded. I' t A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:
Fearing,

# JQ)

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