(dissenting) — Amendments to the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, reveal the legislature’s continued displeasure with our interpretations of the act. Laws of 2000, ch. 26, § 1, codified at RCW 9.94A.345; Laws of 2002, ch. 107, § 1, codified at RCW 9.94A.030.1 fear today’s ruling will fall victim to the same fate. I agree that the defendant’s case should be remanded for resentencing, but I am persuaded that the State should also be allowed to present evidence of Richard Cadwallader’s 1985 Kansas conviction upon remand. I respectfully dissent.
¶34 The facts of this case present a novel question: whether at sentencing the State must prove a conviction when it is unnecessary to a defendant’s persistent offender score or waive its ability to introduce the crime in the event of resentencing. And, because this is a case of first impression, the case law the majority cites for its proposition that the State may not present evidence of the 1985 conviction upon remand does not control here. The majority concludes that there is no legal basis for allowing evidence of the 1985 conviction on remand. Majority at 880. But neither does it present any legal basis squarely prohibiting that course of action.
¶35 In a sentencing hearing, the State must prove the predicate offenses on which it relies for a “three-strikes” conviction by a preponderance of the evidence. State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002). But some predicate offenses will “wash out” of an offender’s criminal history if there is a crime-free statutory period of time between the date of release from the prior offense and the next date of confinement. See RCW 9.94A.525(2). In 1990, *882the legislature passed an amendment to the SRA that barred sex offenses from being washed out regardless of timing. In 1999, this court held that the 1990 amendment was prospective only and sex offenses committed before 1990 could wash out. State v. Cruz, 139 Wn.2d 186, 190, 193, 985 P.2d 384 (1999). However, at Mr. Cadwallader’s 1998 sentencing, the understanding of both parties was that Mr. Cadwallader’s 1978 rape conviction could not wash out, even though his next predicate offense was not until 1993. Majority at 873.
¶36 Having already proved the existence of these two requisite predicate offenses via Mr. Cadwallader’s stipulation, the State did not additionally seek to prove a then-superfluous offense, the 1985 Kansas conviction. The unintentional error presented by reliance on Mr. Cadwallader’s 1978 rape conviction was not illuminated until the decision in Cruz.
¶37 Today the majority contends that because the State knew about Mr. Cadwallader’s 1985 conviction at the time of his sentencing, but did not gratuitously include it in his criminal history, it should not be allowed to do so now. The majority points to State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999) and Lopez, 147 Wn.2d 515, to support this proposition. In those cases, the State completely failed its burden of production in the sentencing hearing, to say nothing of its burden of persuasion. In Ford, the State failed to produce evidence to support its oral assertion that the out-of-state predicate felonies were comparable to Washington felonies. Ford, 137 Wn.2d at 475-76. Likewise, in Lopez, the State failed to produce copies of the judgments on the predicate felony offenses. 147 Wn.2d at 520. Thus, the State did not meet its initial burden of proof on the predicate offenses and could not get a “second bite at the apple” upon remand.
¶38 Mr. Cadwallader argues here that the State egregiously failed its burden of proof because it did not even allege the 1985 Kansas conviction. See majority at 878. But this assertion ignores a crucial difference between Mr. *883Cadwallader’s case and the authority he cites. Here, the 1985 Kansas conviction was not a predicate offense, and the State did not need to present evidence of it.
¶39 At the time of Mr. Cadwallader’s conviction, it was the understanding of both parties that the 1990 SRA amendments foreclosed the “washing out” of Mr. Cad-wallader’s 1978 rape conviction. Majority at 873. While the 1999 decision in Cruz later rejected that reading of the 1990 amendments, in 1998 all the State needed to show was evidence of the 1978 rape conviction and Mr. Cadwallader’s 1993 robbery conviction to sentence him under the Persistent Offender Accountability Act (POAA), RCW 9.94A.505, .555, and .570 and RCW 9.94A.030(28), (32). In fact, that is what the State did. Unlike the prosecution in Ford and Lopez, here the State met its burden of proof in 1998. Today the majority apparently seeks to increase the State’s burden by requiring it to use time and resources to allege every conceivable crime against a defendant under the POAA, as opposed to every applicable crime. Such a result is not consistent with the stated purpose of the SRA to “[m]ake frugal use of the state’s and local governments’ resources.” RCW 9.94A.010(6).
¶40 And though our existent law may not quite answer this question, the legislature would likely not endorse the majority’s decision to prohibit evidence of Mr. Cad-wallader’s 1985 conviction on remand. The 2002 amendments to the SRA expressed the legislature’s displeasure with the majority decisions in Cruz, 139 Wn.2d 186, and State v. Smith, 144 Wn.2d 665, 674-75, 30 P.3d 1245, 39 P.3d 294 (2001) (“[b]ecause the SRA contains no explicit legislative intent for retroactivity, and the 1997 amendment [to juvenile “wash-out” provisions] is neither curative nor remedial, we hold the 1997 amendment cannot be applied retroactively.”). The legislature admonished that neither Cruz nor Smith “properly interpreted legislative intent.” Laws of 2002, ch. 107, § 1; RCW 9.94A.030Q3). “When the legislature enacted the sentencing reform act. . . and each time the legislature has amended the act, *884the legislature intended that an offender’s criminal history and offender score be determined using the statutory provisions that were in effect on the day the current offense was committed.” Id. (emphasis added); State v. Varga, 151 Wn.2d 179, 183, 86 P.3d 139 (2004) (holding that the 2002 SRA amendments “require that sentencing courts include defendants’ previously ‘washed out’ prior convictions when calculating defendants’ offender scores at sentencing for crimes committed on or after the amendments’ effective date.”).
¶41 Richard Cadwallader’s offense occurred in 1997 and is not encompassed by the legislative intent announced in the 2002 SRA amendments. Nevertheless, such legislative sentiments indicate that the legislative intent behind the SRA is best served when courts err on the side of “[e]nsur-[ing] that the punishment for a criminal offense is proportionate to the seriousness of. . . the offender’s criminal history.” RCW 9.94A.010(1). Therefore, while legislative intent does not mandate the inclusion of the 1985 conviction upon remand of Mr. Cadwallader’s case, it suggests that such a course of action would be preferable to the decision the majority announces today. Even though his 1978 rape conviction washed out, Mr. Cadwallader committed a crime in 1985 that should continue to subject him to persistent offender sentencing. Thus, he can hardly claim that his continued incarceration under those laws is a miscarriage of justice necessitating collateral relief. See majority at 873.
¶42 In closing, I note that my preference to allow evidence of the 1985 conviction is in no way connected to Mr. Cadwallader’s failure to object to the predicate offenses, as the State argues it ought to be. Such an argument is unpalatable to the principles underlying the burden of proof in the criminal justice system, which does and always should properly lie with the prosecution. Instead, my dissent stems from the simple fact that the State met that burden of proof at Mr. Cadwallader’s sentencing hearing *885under the law in 1998, and nothing more was required of it. Accordingly, I dissent.
Fairhurst and J.M. Johnson, JJ., concur with Bridge, J.