¶31 (concurring in part, dissenting in part) — I agree with the majority that the trial court erred in holding that the elements of California’s lewd conduct with a child offense were legally comparable to a Washington sex offense. I also agree with the majority’s holding *353that, although failure to register is a qualifying comparable sex offense,14 the State’s charging language in count II unnecessarily incorporated the elements of the California statute and was likewise infected with the error. I write separately because I believe that the trial court’s error is one relating to the admissibility of evidence, rather than sufficiency of evidence, for Howe’s California lewd conduct conviction. As such, the correct remedy for this legal error is remand for a new trial at which the State would have the opportunity to prove that the facts underlying Howe’s California offense clearly satisfy a Washington sex offense that requires registration.
¶32 Here, Howe argues that the State failed to prove to the jury beyond a reasonable doubt “that the two California convictions underlying the failure to register charges were, in fact, sex offenses under Washington law.” Br. of Appellant at 10. But in my opinion, this was not an issue for the jury. Instead, as with violations of no-contact orders addressed in State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005), the validity of the predicate order is not an element of the crime to be decided by the jury beyond a reasonable doubt. As the Miller court pointed out:
[I]ssues relating to the validity of a court order (such as whether the court granting the order was authorized to do so, whether the order was adequate on its face, and whether the order complied with the underlying statutes) are uniquely within the province of the court. Collectively, we will refer to these issues as applying to the “applicability” of the order to the crime charged. An order is not applicable to the charged crime if it is not issued by a competent court, is not statutorily sufficient, is vague or inadequate on its face, or otherwise will not support a conviction of violating the order. The court, as part of its gate-keeping function, should determine as a threshold matter whether the order alleged to be violated is applicable and will support the crime charged. Orders that are not *354applicable to the crime should not be admitted. If no order is admissible, the charge should be dismissed.
Miller, 156 Wn.2d at 31 (emphasis added) (footnote omitted).
¶33 Applying the Miller analysis in this context, whether the jury will learn of Howe’s California convictions for lewd conduct with a child is a legal issue of evidentiary admissibility, not evidentiary sufficiency. 156 Wn.2d at 31. As such, the remedy for erroneously admitting such evidence is not dismissal with prejudice but a remand for a retrial. This remedy is particularly appropriate in this case because Howe did not challenge the comparability of the California convictions. The trial court made the comparability ruling sua sponte, deciding that the elements were the same and thus truncating any opportunity for the State to present the factual basis underlying Howe’s lewd conduct with a child conviction for the trial court’s, or this court’s, consideration.
¶34 This situation is similar to that presented in State v. Mendoza, 165 Wn.2d 913, 205 P.3d 113 (2009), in which our Supreme Court distinguished the proper remedy for situations in which the State had the opportunity to present its evidence but failed to do so, from situations in which the State never had the opportunity. For cases in the former category, the proper remedy is to bar the State from a second chance to prove its case. Mendoza, 165 Wn.2d 913. This remedy is consistent with double jeopardy doctrine, which prevents the State from retrying a defendant after it presents insufficient evidence at trial to convict him, despite the opportunity to do so. State v. Wright, 165 Wn.2d 783, 795, 203 P.3d 1027 (2009) (double jeopardy does not prevent State from retrying defendant under correct statute, after prosecution under wrong statute, as long as sufficient evidence at first trial supports conviction under correct statute (quoting Parker v. Lockhart, 797 F. Supp. 718, 725 (E.D. Ark. 1992))). For cases in the latter category, the State never had the opportunity to present its evidence and, *355thus, double jeopardy does not bar an evidentiary hearing on the issue and retrial should allow the State to present its evidence for the first time. Mendoza, 165 Wn.2d at 930 (where “there is no objection at sentencing and the State consequently has not had an opportunity to put on its evidence, it is appropriate to allow additional evidence at [re] sentencing”); Wright, 165 Wn.2d at 795 (unless double jeopardy bars retrial, appellate courts apply remedy of remanding for retrial (quotingParker, 797 F. Supp. at 725)). Here, the trial court erroneously applied a simple statutory analysis and held that Howe’s convictions were legally comparable, thus precluding the State from presenting evidence of factual comparability. The proper remedy, therefore, is to remand to provide the State with a full opportunity to prove that Howe’s California conviction is factually comparable to a Washington sex offense. I acknowledge State v. Werneth, 147 Wn. App. 549, 555, 197 P.3d 1195 (2008) in which Division Three reversed and remanded for dismissal with prejudice following a similar error. But I note that the court did not analyze double jeopardy principles before stating its result.
¶35 Because I believe the trial court made an error of law concerning the admissibility of evidence, I would remand. If, on remand, a review of the factual basis for Howe’s California conviction does not reveal it to be comparable to a Washington sex offense, then the proper remedy would be dismissal of the charge. See, e.g., Miller, 156 Wn.2d at 31.
See State v. Albright, 144 Wn. App. 566, 569-70, 183 P.3d 1094 (correcting legislative numbering error to provide that failure to register as a sex offender is a sex offense), review denied, 164 Wn.2d 1028 (2008).