(dissenting) — The United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), has been described as a “sea change in the body of sentencing law.”6 To be sure, Blakely restricted judicial discretion in deter*296mining when criminals deserve exceptional punishment. But this change did not sweep away the vital role of the judge in deciding as a matter of law, based on facts already proved or admitted, whether an exceptional sentence is warranted. I believe the majority in this case takes Blakely too far, unwisely shifting questions of law from the judge to the jury, whose proper role is to decide questions of fact. In my view, when Amir Suleiman stipulated that he drove too fast while intoxicated, ignored his passengers’ screams to let them out, and caused Kim Dwyer to spend the rest of her life as a quadriplegic, he invited the judge to decide as a matter of law that those facts warranted a 48-month exceptional sentence. Therefore, I dissent.
I. Blakely
¶28 Blakely held that Washington State’s former sentencing scheme, which authorized judges to impose exceptional sentences based on their own determination of aggravating facts, violated the defendant’s right to have a jury find the existence of “ ‘any particular fact which the law makes essential to the punishment.’ ” Blakely, 542 U.S. at 301 (quoting 1 Joel Prentiss Bishop, Criminal Procedure § 87, at 55 (2d ed. 1872)). We have summarized Blakely’s impact on Washington sentencing as follows: “[A]ny/ac£ other than that of a prior conviction, which increases the applicable punishment, must be found by a jury beyond a reasonable doubt (unless it is stipulated to by the defendant or the defendant waives his right to a jury finding).” State v. Hughes, 154 Wn.2d 118, 126, 110 P.3d 192 (2005) (emphasis added). Thus, Blakely prohibits judicial fact finding once a defendant invokes the constitutional right to a jury trial.
¶29 But when a defendant pleads guilty, Blakely allows judicial sentence enhancements “so long as the defendant . . . stipulates to the relevant facts.” Blakely, 542 U.S. at 310 (emphasis added). And regardless of how facts are established — whether by jury trial, bench trial, or stipulation — we have always understood that “Blakely left intact the trial *297judge’s authority to determine whether facts alleged and found are sufficiently substantial and compelling to warrant imposing an exceptional sentence under RCW 9.94A.535. “That decision is a legal judgment which, unlike factual determinations, can still be made by the trial court.” Hughes, 154 Wn.2d at 137 (emphasis added); see also State v. Van Buren, 123 Wn. App. 634, 646 n.5, 98 P.3d 1235 (2004) (“once the jury determines the threshold facts, the judge’s role — to determine the effect of these facts — is not diminished” by Blakely).
¶30 But what are the bounds of this “legal judgment” about sentencing when a defendant stipulates to the facts of his guilt? Blakely did not reach this question.7 Unlike Suleiman, the defendant in Blakely admitted only the bare elements of his crime and “no other relevant facts.” Blakely, 542 U.S. at 299. And while Suleiman’s sentence was based on facts he admitted as part of his plea agreement, Blakely’s exceptional sentence was based on adverse testimony of witnesses at a postplea bench hearing. Thus, Blakely simply does not address the situation here, except to state generally that “judicial sentence enhancements” may be based on “relevant” stipulated facts. Therefore, nothing in Blakely barred the judge in this case from finding that Suleiman’s high speed and drunken condition, and the serious permanent injury to his trapped passenger, warranted an exceptional sentence under former RCW 9.94A.535 (2003). On the contrary, Blakely said that “the Sixth Amendment was not written for the benefit of those who choose to forgo its protection” by waiving the right to a jury trial. Blakely, 542 U.S. at 312.
¶31 By interpreting Blakely to require a stipulation or jury finding for legal conclusions as well as facts, the majority ignores contrary interpretations among federal courts around the country. In United States v. Booker, 543 *298U.S. 220, 233, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the United States Supreme Court confirmed that Blakely applies to federal sentencing. Since then (or in anticipation of that ruling), federal courts have repeatedly imposed or upheld exceptional sentences that were based on stipulated facts, without any corresponding stipulation to the legal effect of those facts. See United States v. Paulus, 419 F.3d 693, 699 (7th Cir. 2005) (where federal sentencing guidelines authorized an upward departure for significant disruption of a governmental function, the court could enhance defendant’s sentence based on judicial notice of the fact that his admitted bribery undermined public confidence in Wisconsin’s judicial system, despite defendant’s argument that he “ ‘did not intend to admit any facts for purposes of sentence enhancement under Blakely/Booker’ ”); United States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir. 2005) (defendant need not stipulate to the characterization of a prior conviction as an “ ‘alien smuggling offense,’ ” although that characterization results in a higher sentence); United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005) (“[s]ince the Defendant made no objection to the facts contained in the [presentence report],... its use to enhance the base offense level was correct”); United States v. Murdock, 398 F.3d 491, 502 (6th Cir. 2005) (where the defendant admitted facts that supported the court’s calculation of a $132,000 loss, that amount could serve as a basis for an enhanced sentence although the defendant did not stipulate to the calculation); Borrero-Arroyo v. United States, 379 F. Supp. 2d 232, 239 n.9 (D.P.R. 2005) (where the petitioner did not object to the government’s assertion that he had a leadership role in a heroin-selling conspiracy and where he admitted he was the “owner of drug points” in certain wards of Puerto Rico, Blakely did not bar a sentence enhancement based on a leadership role); United States v. Fotiades-Alexander, 331 F. Supp. 2d 350, 353 (E.D. Pa. 2004) (where the defendant admitted that her victims were either dead or disabled, “[t]his serves as an admission of the vulnerability of the victims” for the purposes of an enhanced sentence, and defendant’s admission to being a *299fiduciary similarly allowed an enhancement based on abuse of trust). These cases persuasively establish that Blakely does not prohibit judges from enhancing sentences based on stipulated facts, even if the defendants never stipulated to the legal conclusions drawn from those facts.8
¶32 Fotiades-Alexander is especially noteworthy because the defendant in that case never admitted that she knew or should have known that her victims were “vulnerable.” Fotiades-Alexander, 331 F. Supp. 2d at 353. Yet the court enhanced her sentence based on vulnerability of the victims because she
admitted she was chosen as a member of the [Department of Veterans’ Affairs’] Commission Fiduciary Program to manage and oversee the financial affairs of veterans who were either physically disabled or mentally disabled and that she wrote checks on the accounts of veterans for whom she served as the federal fiduciary. This serves as an admission of the vulnerability of the victims ....
Id. (emphasis added). Similarly under our state law, Suleiman could not receive a vulnerability enhancement unless he knew or should have known of his victim’s vulnerability. Former RCW 9.94A.535(2)(b) (2003), recodified as RCW 9.94A.535(3)(b). Just as the admitted facts in Fotiades-Alexander supported the judge’s legal conclusion that the defendant knew of the victims’ vulnerability, in this case, Suleiman’s admissions supported the same conclusion. After all, Suleiman stipulated that “Sarah, Kim *300and Melissa were yelling at Suleiman, telling him to slow down and let them out of the car,” and that he “ignored the passengers’ pleas for him to stop. He yelled back at them to ‘shut up’, and continued to drive faster.” Clerk’s Papers (CP) at 3. It is preposterous to suggest that passengers trapped in a speeding car by a drunk driver are not “vulnerable” by any definition of the word. Therefore, the judge properly concluded that Suleiman knew or should have known that Kim Dwyer, whom he rendered quadriplegic, was particularly vulnerable. Yet although the judge labeled this determination a “conclusion[ ] of law,” the majority insists it actually was an impermissible “factual” determination. CP at 68; majority at 293-94. This is folly in light of FotiadesAlexander, similar federal rulings, our own precedents, and plain logic.
II. Fact v. Law
¶ 33 The majority acknowledges that it is for a judge— not a jury — to decide whether the facts of a crime are “sufficiently substantial and compelling” to warrant an exceptional sentence. Majority at 290-91. But the majority blurs the distinction between factual findings relegated to the jury and legal conclusions properly left with the judge, referring confusingly to “factual conclusions.” Majority at 293.9 This assertion is sure to worsen confusion among courts. “The importance of the law-fact distinction is surpassed only by its mysteriousness. . . . [T]he distinction continues to bedevil courts and commentators alike.” Ronald J. Allen & Michael S. Pardo, The Myth of the Law-Fact Distinction, 97 Nw. U. L. Rev. 1769, 1769 (2003).
¶34 The majority’s bedevilment is apparent from a lengthy footnote in which it strains to characterize a judge’s legal reasons for exceptional sentences as “factual determination[sj.” Majority at 291 n.3. One of the cases cited is *301State v. Cardenas, 129 Wn.2d 1, 914 P.2d 57 (1996). But that case actually undermines the majority’s position.
¶35 In Cardenas, the defendant did not object to the factual findings of his victim’s injuries, including broken bones, lost cognitive function, and amputation of part of her leg, but objected only “to their characterization as more serious than inherent in the crime” Id. at 6 n.l (emphasis added). We said that “the determination of the underlying facts is a question of fact, whereas the determination of whether those facts justify an exceptional sentence is a question of law.” Id.10 The same reasoning applies here. Suleiman, like the defendant in Cardenas, did not dispute the “underlying facts” of his vehicular assault. Thus in this case, as in Cardenas, it was for the judge to decide how to characterize those already-determined facts for sentencing purposes. Furthermore, this court upheld Cardenas’s exceptional sentence based on victim vulnerability although “[t]he trial court made no specific findings regarding whether Cardenas knew or should have known of a risk to pedestrians” before his vehicle struck the unsuspecting victim in her backyard. Id. at 12. Thus, we decided as a matter of law, in the absence of any factual stipulation or finding regarding the defendant’s state of mind, that because the defendant was in a residential area, he “either knew or should have known that there would be people such as the victim here, totally unprepared and vulnerable.” Id. Just as the underlying facts in Cardenas warranted an exceptional sentence without any stipulation or finding as to the defendant’s knowledge of vulnerability, Suleiman’s knowledge of Dwyer’s vulnerability in this case is similarly established as a matter of law based on the underlying stipulated fact that she was powerless to escape from his car.
*302III. Other Reasons
¶36 To reverse an exceptional sentence, this court must find that: (a) the record did not support the sentencing court’s reasons for the sentence or those reasons do not justify an exceptional sentence or (b) the sentence was clearly excessive. ROW 9.94A.585(4). Our review “shall be made solely upon the record that was before the sentencing court,” and briefs “shall not be required.” ROW 9.94A.585(5) (emphasis added). Not every reason must be valid to uphold an exceptional sentence. Hughes, 154 Wn.2d at 134. “Where the reviewing court overturns one or more aggravating factors but is satisfied that the trial court would have imposed the same sentence based upon a factor or factors that are upheld, it may uphold the exceptional sentence.” State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003).
¶37 Despite the standards just described, the majority incorrectly limits its analysis to only one of the judge’s three reasons for Suleiman’s exceptional sentence — the vulnerability of Dwyer. It does so apparently because “that is the factor that the State now argues is supported by the stipulated facts.” Majority at 291 (citing Suppl. Br. of Resp’t at 9-10). But the State’s brief should not guide our analysis. We are to review exceptional sentences “solely” based on the record that was before the sentencing court. RCW 9.94A-.585(5). If legislators had intended to limit our review of sentences to the issues raised in briefs, they certainly would not have stated that “briefs shall not be required.” Id. More importantly, as noted above, we may uphold a sentence even if only one of the reasons for it is valid. Therefore, the majority’s failure to address two of the three reasons for Suleiman’s exceptional sentence — other than asserting in a dismissive footnote that they “necessarily involve!]” an impermissible factual comparison by the judge — is a fatal flaw in its analysis. Majority at 294 n.5.
¶38 In fact, we should uphold Suleiman’s sentence based on the judge’s first reason — that “[t]he injury to Kim Dwyer is far greater than that contemplated by the legislature in *303setting the injury element of vehicular assault at ‘substantial bodily injury.’ ” CP at 68.
¶39 Particularly severe injuries may justify an exceptional sentence only if they are greater than the injuries contemplated by the legislature in setting the standard sentence range for the crime. See State v. Armstrong, 106 Wn.2d 547, 550-51, 723 P.2d 1111 (1986). In at least two prior vehicular assault cases, Cardenas, 129 Wn.2d at 6-7, and State v. Nordby, 106 Wn.2d 514, 519, 723 P.2d 1117 (1986), we found that particularly severe injuries did not justify exceptional sentences. However, after those cases were decided, the legislature changed the degree of injury necessary for standard punishment of vehicular assault from “serious bodily injury” to “substantial bodily harm.” Laws of 2001, ch. 300, § 1. “ ‘Substantial bodily harm’means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.” RCW 9A.04.110(4)(b) (emphasis added). Thus, since 2001, the legislature has envisioned a standard-range sentence for vehicular assaults that cause temporary injury only. In this case, because of Suleiman’s vehicular assault, Dwyer will never walk again, nor feed or bathe herself. Indeed, Suleiman stipulated that she is a quadriplegic due to the “catastrophic spinal cord injury” resulting from his assault. CP at 9. In sum, this permanent and utterly disabling injury is far worse than the fracture or other “temporary injury” that the legislature contemplated in setting the standard range. Suleiman’s sentence should be affirmed on that ground alone.
¶40 Even if Dwyer’s permanent injury was not enough reason to affirm the sentence, her particular vulnerability provides another reason, as explained above. Based on the foregoing analysis, I would affirm Suleiman’s exceptional sentence.
C. Johnson and J.M. Johnson, JJ., concur with Alexander, C.J.
United States v. Ameline, 376 F.3d 967, 973 (9th Cir. 2004).
The Supreme Court simply assumed that “questions of fact” (as opposed to legal judgments) are “self-evident” and did not define them in Blakely. Paul F. Kirgis, The Right to a Jury Decision on Sentencing Facts After Booker; What the Seventh Amendment Can Teach the Sixth, 39 Ga. L. Rev. 895, 948 (2005).
Furthermore, the United States Supreme Court itself recently approved of a judge making a legal conclusion based on a defendant’s factual admissions in order to enhance a sentence under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e). In Shepard v. United States, 544 U.S. 13, 25, 26, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), the Court held that a judge may determine whether a prior, admitted burglary qualifies as a “generic” burglary (involving entry into a building, not a vehicle) under the ACCA, based on the judge’s examination of the charging document as well as any written plea agreement, colloquy transcript, or other record of the defendant confirming the “factual basis for the plea.” It follows that if a judge can conclude from a plea agreement that an admitted burglary qualifies as a generic burglary for ACCA sentencing purposes, the judge in this case properly could conclude from Suleiman’s plea agreement that his admitted vehicular assault qualified as an unusually egregious and harmful crime for former RCW 9.94A.535 sentencing purposes.
For example, the majority says that whether “the record” (the defendant’s stipulation) supports the conclusion that the victim was particularly vulnerable is a “factual conclusion” for the jury to make. Id.
See also State v. Solberg, 122 Wn.2d 688, 705, 861 P.2d 460 (1993) (Where factual findings are supported by the record and are the reason for an exceptional sentence, it is for the judge to decide if the facts justify an exceptional sentence.).