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) UNPUBLISHED OPINION 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 In an unpublished opinion, this court affirmed the convictions, but remanded for 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 ofMr. 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 ofMr. Lopez's offender score 

and resentencing, ifnecessary. 

FACTS 

In 2012, ajury found Mr. Lopez guilty offirst 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. 

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 pursuant to RCW 

2.06.040. 

WE CONCUR: 

Fearing, JQ ) 

4