(dissenting) — I dissent because there are no findings of fact or conclusions of law to the effect that Cardenas knew or should have known of the victim’s vulnerability. I would, therefore, remand for imposition of a sentence within the standard range.
A trial court may, of course, impose an exceptional sentence that exceeds the standard range when it determines that the facts of the case support a conclusion that aggravating circumstances are present. One statutorily designated aggravating circumstance is victim vulnerability. RCW 9.94A.390(2)(b).4 Indeed, it was that factor *14which the trial court relied upon, at least in part, to justify the exceptional sentence that was imposed here. Significantly, though, in order for this factor to come into play, the sentencing court must not only determine that the victim was vulnerable, but also that "[t]he defendant knew or should have known that the victim of the current offense was particularly vulnerable.” RCW 9.94A.390(2)(b) (emphasis added).
Although the trial court concluded that Margaret Michel was "a particularly vulnerable victim,” it did not enter a conclusion that Cardenas had knowledge of her vulnerability. The closest it came to doing so was its conclusion that Cardenas "knew of and disregarded a substantial risk that a wrongful act may occur.” Clerk’s Papers at 27. The latter conclusion does not, however, establish that Cardenas knew or should have known of Michel’s vulnerability. Even if we assume, however, that it amounts to such a conclusion, the trial court did not make any findings of fact to support that conclusion. Furthermore, even if such findings had been entered, they fail because there is no evidence in this case upon which to base such findings. In essence, it is only the majority of this court that makes this finding and conclusion.
In registering my dissent, I am not suggesting that the trial court wrongly concluded that the victim, Michel, was "particularly vulnerable” to the physical forces of Cardenas’s vehicle as she stood in her backyard. That conclusion is consistent with this court’s expansive interpretation of what constitutes a particularly vulnerable victim. Although the statute, RCW 9.94A.390(2)(b), refers only to the conditions of "extreme youth, advanced age, disability, or ill health,” as indicators of particular vulnerability, this court has added the "relatively defenseless status as a pedestrian” to the list of qualifying conditions. See State v. Nordby, 106 Wn.2d 514, 516 n.1, 723 P.2d 1117 (1986). Even conceding, though, that Michel’s vulnerability as a pedestrian was of a kind that is contemplated under the statute, that is not enough to justify the enhanced *15sentence that was imposed here. That is so because, as I have noted above, there was simply no showing that Cardenas knew or should have known that Michel was particularly vulnerable.
Although the record is silent on this matter, it seems reasonable to conclude that, as Cardenas was driving his automobile in the vicinity of Michel’s home just prior to the accident, he was not actually aware of Michel’s presence in her backyard. In addition, it follows that he was unaware that she was in a location to bear the force of his car in the event that he lost control of it. In that regard, the facts in this case stand in stark contrast to the facts in Nordby, a case in which the defendant observed the ultimate victims walking their bikes along the side of the road and intentionally swerved his vehicle towards them. Clearly, nothing like that happened here.
Neither can it be said that Cardenas "should have known” of Michel’s vulnerability as a pedestrian. The facts found by the trial court indicate only that, just prior to the accident, Cardenas was "exceeding the speed limit” of 25 miles per hour.5 Finding of Fact 1, Clerk’s Papers at 28. At about this same time, Michel entered the backyard of her home to take out her garbage. Between Michel and the street on which Cardenas was driving there was a one-to two-foot-high retaining wall. Based solely on these facts, the majority concludes that it is "reasonable to assume that . . . Cardenas either knew or should have known that there would be people such as the victim” present. Majority Op. at 12. I disagree that such a conclusion can be founded on such a flimsy factual basis. Indeed, if constructive knowledge of victim vulnerability can be found in this case, it is hard to imagine a vehicular as*16sault case where victim vulnerability could not be found. That is so because in every vehicular assault it is always conceivable, at least in hindsight, that a victim could be in a place where he or she could be struck by the defendant’s vehicle.
In my view, a defendant should be charged with knowledge of a pedestrian’s particular vulnerability only when the defendant clearly had a reason to know, based on the circumstances of the case, that pedestrians were present in the area in which he or she was driving. Thus, a defendant traveling through a school zone during a school day could well be found to have constructive knowledge that his or her driving could cause a risk of harm to children at play. Similarly, a person driving in a downtown retail district with sidewalks crowded with shoppers should know that there is risk of harm to the pedestrians should he or she fail to drive safely. On the other hand, it seems unreasonable to charge a driver with constructive knowledge that an unseen pedestrian is particularly vulnerable to the force of his or her car should the driver lose control of his or her vehicle while driving in an undeveloped or sparsely populated area in the middle of the night. In the final analysis, the situation here is more like the latter example than the former. In short, it was purely a sad and tragic happenstance that Michel was struck by Cardenas’s automobile.
The requirement that the defendant know or should know of the victim’s vulnerability in order to support an enhanced sentence is consistent with a theme that runs through RCW 9.94A.390(2), the statute authorizing exceptional sentences where aggravating circumstances are present. The theme is that an exceptional sentence is appropriate when a defendant acts in a particularly egregious manner or acts with a heightened level of culpability. An upward departure in a sentence is justified, for example, when a defendant acts with deliberate cruelty, or abuses a position of trust, or engages in a series of drug or economic offenses demonstrating a high degree *17of sophistication or planning, etc. RCW 9.94A.390(2)(a)-(g). As it relates specifically to this case, that theme is inapplicable because the defendant, guilty as he is of the underlying offense of vehicular assault, did not act in a manner that evinces a higher level of culpability than is typical in a vehicular assault.
The majority properly concludes that the seriousness of the injuries suffered by Michel is not a factor that supports the exceptional sentence that was imposed here. Despite this observation, with which I agree, the majority invokes victim vulnerability to affirm the exceptional sentence imposed in this case. In my opinion, it is inappropriate to use this seemingly convenient factor to rationalize a legally unsupportable result.
Johnson and Madsen, JJ., concur with Alexander, J.
RCW 9.94A.390 provides that the following is one of the "factors which the court may consider [as an aggravating circumstance] in the exercise of its discretion to impose an exceptional sentence”:
"(b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.” RCW, 9.94A.390(2)(b).
he majority describes the area in which Cardenas was driving as "a residential area.” Majority Op. at 12. The only reference in the record to the character of the area, however, is an offhand comment made by the police officer who was the first to respond to the scene of the accident. When the prosecuting attorney asked the officer whether he was aware of the speed limit in the area of the collision, the officer answered as follows: "It’s a residential area, it would be 25 miles per hour.” Report of Proceedings at 15 (Dec. 22, 1992).