¶27
(dissenting) — Blakely6 requires a jury to find any aggravating factor increasing a sentence beyond the maximum for the underlying crime. Here, the jury through special interrogatory found that T.D.B.’s “particular vulnerability” aggravated Anthony Davis’ unlawful imprisonment of this child victim. In my view, the analysis should end here. But Davis claims, and the majority holds, that the trial judge erred by providing the added protection of a jury decision on the aggravating factor beyond a reasonable doubt (rather than a judge making such findings by a preponderance of the evidence). Because the trial judge fully protected Davis’ right to jury trial, I dissent.
J.M. Johnson, J.¶28 The majority did not recite the facts supporting Davis’ conviction, so I will briefly review them. Davis lived with his girl friend, Bobbi Dewey, and her seven year old daughter, T.D.B. One evening, Ms. Dewey told Davis that their relationship was ending and that he had to move out. Shortly after, Davis called Ms. Dewey into the bedroom. He grabbed her neck and threw her into a nightstand. He then grabbed her by the throat and banged her head into the wall. He grabbed her neck again and shoved her into the frame of their iron rod bed and banged her head against the bars.
¶29 T.D.B. heard her mom screaming and came into the bedroom. Ms. Dewey told the child to run for help. Davis *618ordered T.D.B. not to leave. T.D.B. pleaded with Davis not to hurt her mom and grabbed Davis’ arm. He grabbed the child’s shirt and pulled her down, slamming her arm into the wall. Davis threatened to kill them both and ordered them into the living room. After threatening again to hurt Ms. Dewey, and breaking a picture frame and a light, Davis left the house. Ms. Dewey called 911.
¶30 The State charged Davis with two counts of second degree assault and unlawful imprisonment and one count of harassment, third degree malicious mischief, and violation of a domestic protection order. The State alleged that the unlawful imprisonment against T.D.B. was aggravated by her particular vulnerability — incapability of resistance due to extreme youth.
¶31 In between Blakely (June 24, 2004) and the “Blakely fix” (April 15, 2005) (Laws of 2005, ch. 68), a trial judge had three options regarding exceptional sentences: (1) apply a procedure found unconstitutional by determining any aggravating factor himself; (2) impose no exceptional sentence on any defendant; or (3) submit the issue by special interrogatory to an already impaneled jury, relying on the authority of a statute and court rule.
¶32 The majority declares that “[t]rial courts may not deviate from the legislatively prescribed exceptional sentencing procedures, whether at trial or on remand,” even when the Supreme Court of the United States has explicitly declared one procedure unconstitutional. Majority at 608.1 disagree. It makes no sense to require a trial judge to apply a procedure previously held invalid. If the judge had done so here, the exceptional sentence would have been reversed as a violation of the Blakely right to a jury trial.
¶33 The majority also asserts that in between Blakely and the Blakely fix, a period of over nine months, neither a judge nor a jury could impose an exceptional sentence. This clearly frustrates legislative intent and renders much of the exceptional sentence statute meaningless. RCW 9.94A.010(1) declares that the purpose of the chapter is to “[e]nsure that the punishment for a criminal offense is proportionate to the *619seriousness of the offense.” And in RCW 9.94A.535, the legislature provided that certain aggravating factors could increase the seriousness of the offense and consequent penalties. The statute focuses on victims and declares that “particularly vulnerable” victims deserve greater protection. Yet the majority’s narrow, formulistic view of the law denies this protection. The majority disregards the legislative directive and refuses to apply the substance of a statute because one procedure is problematic.
¶34 I would hold that the court properly submitted the aggravating factors to the jury to comply with Blakely. Both a statute and court rule allowed judges to provide this remedy prior to the legislature’s Blakely fix. RCW 2.28.150 provides that “if the course of proceeding is not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the laws.” CrR 6.16(b) declares, “[t]he court may submit to the jury forms for such special findings which may be required or authorized by law. The court shall give such instruction as may be necessary to enable the jury both to make these special findings or verdicts and to render a general verdict.”
f 35 Under Blakely, the judge determined the procedure provided in the statute for imposing enhanced sentences was unconstitutional because of a defendant’s right to a jury. Title 9 RCW contains the following broad severability clause:
If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.
RCW 9.94A.910. The trial court properly applied this provision and severed and struck the invalid procedure from the substantive remainder of the statute. This renders the statute silent on the procedure to determine aggravating factors. The trial court then had authority under RCW *6202.28.150 and CrR 6.16(b) to submit the aggravating factor to the jury by special interrogatory. The trial judge properly “discharge [d] constitutional requirements and . . . implemented] legislative intent.” State v. Pillatos, 159 Wn.2d 459, 485, 150 P.3d 1130 (2007) (Chambers, J., concurring). His actions should be commended rather than overturned. The judge protected Davis’jury trial right and implemented the statute.
¶36 On many other occasions, this court has recognized a trial court’s authority to adopt a procedural mechanism to protect a defendant’s right to a trial by jury. See majority at 613 for a list of examples. In my view, this case is no different. Inasmuch as Hughes,7 Pillatos, Womac,8 and Hall9 hold to the contrary, I believe those cases were wrongly decided. These cases also criticized creating a “ ‘procedure out of whole cloth’ ” to impanel a sentencing jury on remand to determine aggravating factors. Pillatos, 159 Wn.2d at 469 (quoting Hughes, 154 Wn.2d at 152). This case is distinguishable. Here, we had an already impaneled jury, the commonly used procedural mechanism of a special interrogatory, and a valid jury finding (rendered beyond a reasonable doubt). No “whole cloth” procedure was created. It makes no sense to void the jury finding that Davis deserved an exceptional sentence because one of his victims was a child the jury found particularly vulnerable.
¶[37 Blakely's avowed rationale was to protect a defendant’s constitutional right to trial by jury. Here, the trial judge properly implemented legislative intent for enhanced penalties while protecting Davis’ jury trial right. The plain language of RCW 2.28.150 and CrR 6.16(b) provides a trial judge ample authority to employ an alternative jury procedure in exceptional sentencing cases such as this one. Because the majority holds otherwise, I dissent.
Chambers, J., concurs with J.M. Johnson, J.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005).
State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007).
In re Pers. Restraint of Hall, 163 Wn.2d 346, 181 P.3d 799 (2008).