State of Washington v. Elvis Camillo Renteria Lopez ( 2015 )

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) UNPUBLISHED OPINION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 In an unpublished opinion, this court affirmed the convictions, but remanded for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.
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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 Wash. 2d at 821. The State has the burden to prove prior convictions at
sentencing by a preponderance of the evidence. State v. Hunley, 175 Wash. 2d 901, 909-10,
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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 Wash. 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 )
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