Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 83777-5
Title of Case: State v. Lucero
File Date: 05/06/2010
Oral Argument Date:


SOURCE OF APPEAL
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Appeal from Snohomish County Superior Court
05-1-01688-9
Honorable James H Allendoerfer


JUSTICES
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COUNSEL OF RECORD
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Counsel for Petitioner(s)
Maureen Marie Cyr
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Charles Franklin Blackman
c/o Snohomish County Pros
3000 Rockefeller Ave
Everett, WA, 98201-4060





IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
NO. 8 3 7 7 7 - 5
Respondent,

v. EN BANC

DAVID RAY LUCERO,
Filed: May 6, 2010
Petitioner.

PER CURIAM -- We previously granted David Lucero's petition for review
of a Court of Appeals decision affirming his sentence for second degree assault, and
we remanded to that court for reconsideration in light of our decision in State v.
Mendoza, 165 Wn.2d 913, 205 P.3d 113 (2009). On remand, the Court of Appeals
adhered to its original decision. Lucero again petitioned for review. Because
Mendoza clearly controls the outcome in Lucero's favor, we grant review, reverse the
Court of Appeals, and remand to the trial court for further proceedings.
A jury convicted Lucero of second degree assault. At sentencing, Lucero
recited a standard sentencing range that was apparently based on the inclusion of a

No. 83777-5 Page 2

California burglary conviction in his offender score. He conceded that his offender
score was at least six, which included the burglary conviction, arguing
(unsuccessfully) only that a previous California conviction for possession of a
controlled substance had "washed out." The trial court did not conduct a
comparability analysis of the California convictions, and it imposed a standard range
sentence based on an offender score of seven, which included the California
convictions.
Lucero appealed to Division One of the Court of Appeals, asserting
offender score error. The State acknowledged that there was a valid comparability
issue with respect to the California burglary and controlled substance convictions, but
it argued that Lucero waived any error by acknowledging his offender score and
standard range. The Court of Appeals agreed, holding that Lucero affirmatively
acknowledged the comparability of the California convictions when he argued that the
possession conviction had washed out and acknowledged that, without counting that
conviction, he would have an offender score that necessarily included the California
burglary conviction. State v. Lucero, 140 Wn. App. 782, 788-89, 167 P.3d 1188
(2007) (Lucero I).
Lucero petitioned for review in this court, which deferred consideration of
the petition pending the decision in Mendoza, 165 Wn.2d 913. After Mendoza became
final, the court granted Lucero's petition for review on the offender score issue and
remanded to the Court of Appeals for reconsideration in light of Mendoza. State v.
Lucero, 166 Wn.2d 1014 (2009).
On remand, the Court of Appeals essentially reissued its decision in Lucero
I. State v. Lucero, 152 Wn. App. 287, 217 P.3d 369 (2009) (Lucero II). The only
addition was a footnote acknowledging Mendoza but concluding that it did not control.

No. 83777-5 Page 3

Id. at 295 n.18. Lucero again petitioned for review.
In both Lucero I and Lucero II, the Court of Appeals declined to follow the
decision of Division Two of the Court of Appeals in State v. Jackson, 129 Wn. App.
95, 117 P.3d 1182 (2005). In Jackson, the State conceded that remand was necessary
to determine the comparability of an Oregon conviction that had been included in the
defendant's offender score. The Court of Appeals noted that although the defendant
failed to object at sentencing to the counting of the Oregon conviction, he did not
affirmatively acknowledge that the Oregon conviction had properly been included in
his offender score. Id. at 106. The court thus remanded to the trial court for a
comparability determination. Id. at 108-09. In both Lucero I and Lucero II, the Court
of Appeals criticized Jackson as "contrary to the most basic principles of judicial
economy" because it encouraged dilatory trial tactics. Lucero I, 140 Wn. App. at 790;
Lucero II, 152 Wn. App. at 296.
In Mendoza this court did not refer to Jackson, but our decision there is
wholly consistent with Jackson. In Mendoza, the defendants did not affirmatively
concede the State's calculated criminal histories, but they argued for sentences within
the standard ranges dictated by those histories. We clarified that a defendant's mere
failure to object to the State's assertion of criminal history is not an affirmative
acknowledgment amounting to a waiver of criminal history sentencing error.
Mendoza, 165 Wn.2d at 928-29. Absent such affirmative acknowledgment, the State
must meet its burden of proving the defendant's criminal history by a preponderance
of the evidence. Id. We held that neither defendant in Mendoza affirmatively
acknowledged the State's determination of criminal history. Id. at 929.
On remand, the Court of Appeals here attempted to distinguish Mendoza on
the basis that Lucero waived his challenge to his criminal history by acknowledging his

No. 83777-5 Page 4

offender score. Lucero II, 152 Wn. App. at 295 n.18. But Mendoza is not so easily
distinguished. Lucero did not "affirmatively acknowledge" that his California
convictions were comparable to Washington crimes. At most, he acknowledged that
without the challenged California drug possession conviction, his offender score would
still include the California burglary conviction. That is not the "affirmative
acknowledgment" of comparability that Mendoza requires.
The Court of Appeals is reversed and the matter is remanded to the trial
court for further proceedings consistent with this opinion.1

1 Whether the State may attempt to prove Lucero's criminal history on remand
is not before us. We leave that issue for the trial court.