¶79
(dissenting) —
Involving a Minor in a Drug Transaction
¶80 The majority concludes that a parent who deals drugs in his living room in front of his child does not in any manner involve the child in the drug deal. Because this holding is contrary to the plain meaning of former RCW 69.50.401(f) (1998), recodified as RCW 69.50.4015, and to common sense, I dissent.
¶81 Former RCW 69.50.401(f) states: *28Proper analysis of the issue presented by this case requires a two-part inquiry: whether Gonzales’s13 13-year-old stepdaughter was “in any . . . manner involve [d]” in his drug transactions and, if so, whether it was Gonzales who involved her in the transactions.
*27It is unlawful to compensate, threaten, solicit, or in any other manner involve a person under the age of eighteen years in a transaction unlawfully to manufacture, sell, or deliver a controlled substance.
*28Was Gonzales’s 13-Year-Old Stepdaughter “Involved” in His Drug Transactions?
¶82 The word “involve” has a wide range of meaning. As the majority recognizes, the plain and ordinary meaning14 of “involve” is “to enfold or envelop so as to encumber ... to draw in as a participant... to oblige to become associated (as in an unpleasant situation).” Webster’s Third New International Dictionary 1191 (2002). Furthermore, in the statute, the phrase “in any other manner” modifies “involve.” By including “in any other manner,” the legislature demonstrated its intent to give “involve” its full range of meaning.
¶83 Under the ordinary definition, a person need not actively participate in order to be involved: Two people involve a co-worker in their politics by arguing over candidates in the same small office; a passenger is involved in a car accident; parents involve their child in domestic violence if they physically abuse each other in front of the child.
¶84 Using the plain meaning of “involve,” a child is “involved” in a drug transaction by being a member of the party conducting the transaction, by being in a confined space with the transaction, by participating in the transaction, or by being inextricably proximate to and aware of the transaction. In such situations, the child is “enveloped and enfolded” by the potential dangers of the transaction in two meaningful ways. First, the child bears risks inherent in the transaction — she is an intimate of one of the parties and *29a known witness and thus a potential target if violence ensues. Second, the child is encumbered by the psychological effects of exposure to illegal drug activity. Under the proper interpretation of former RCW 69.50.401(f), there is sufficient evidence to show that Gonzales’s teenage stepdaughter was involved “in some manner” in his drug transactions. See Verbatim Report of Proceedings (VRP) (Feb. 11, 2002) at 452, 482-87.
¶85 Contrary to the majority’s assertions, this reading of “in any other manner involve” does not criminalize drug transactions in the mere presence of children. A child may be merely present when hundreds of feet away from the drug deal — across a busy street or in a crowded mall; a child further may be “within sight or sound,” former RCW 9.94A.535(2)(h)(ii) (2001), of a transaction even though separated from the transaction by a substantial barrier that shields the child from the particular risks and influences of the transaction. “Involvement” requires something more than mere presence; the child must be enveloped in and encumbered by the transaction, as Gonzales’s stepdaughter was here.
¶86 The majority’s reliance on federal law to support its constricted interpretation of “involve” is misplaced. The majority cites 21 U.S.C. § 861 and case law interpreting the federal provision. Majority at 14-15. The federal statute reads in part:
It shall be unlawful for any person at least eighteen years of age to knowingly and intentionally—
(1) employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to violate any provision of this subchapter or subchapter II of this chapter.
21 U.S.C. § 861(a).
¶87 A comparison of the federal statute with former RCW 69.50.401(f) supports a broader interpretation of the state statute. The federal provision enumerates a comprehensive list of specific conduct prohibited, instead of employing a general phrase such as “in any other manner *30involve.” The legislature chose not to use the language of 21 U.S.C. § 861, high-profile legislation passed just the year before, indicating that it intended to proscribe more behaviors than the federal provision. The federal statute also requires the intent to make the child an active participant in criminal behavior, while former RCW 69.50.401(f) has no such requirement. The majority’s holding in this case is perhaps accurate under 21 U.S.C. § 861, but not under the Washington provision at issue in this case.15
Did Gonzales Involve His Stepdaughter in His Drug Transactions?
¶88 The majority argues that Gonzales did not affirmatively act to involve his stepdaughter because he did not “knowingly and purposefully” bring or attempt to bring her into the drug transaction.16 Majority at 17-18. However, affirmative acts are usually contrasted with omissions or failures to act. State v. Chester, 82 Wn. App. 422, 426, 918 P.2d 514 (1996), aff’d, 133 Wn.2d 15, 940 P.2d 1374 (1997); Zamora v. Mobil Oil Corp., 104 Wn.2d 199, 209, 704 P.2d 584 (1985). Gonzales’s choice to transact without first dismissing his stepdaughter was an act, not a failure to act.
¶89 Gonzales’s teenage stepdaughter would not have been involved in his transactions but for his choice to transact in her immediate presence. Gonzales created the situation by choosing the time and place of the transaction. He was not forced to transact when he was approached by a buyer at home. He knew that his stepdaughter was in the room; she did not arrive unexpectedly outside of his con*31trol.17 He chose to sell drugs then and there; he did not simply fail to stop the sale.
¶90 The majority emphasizes the 13-year-old stepdaughter’s failure to leave instead of holding the drug dealer accountable for his actions. Majority at 17. She may have been free to leave the situation, but her stepfather had control over whether to sell cocaine when and where he did. The child’s failure to leave does not relieve Gonzales of culpability for involving her in his drug transactions.
Conclusion
¶91 We should not recognize a viable defense to the crime of involving a minor in a drug transaction for a parent who says, “I don’t involve my kids in my drug business; I only sell when they’re with me at home.” Instead, we should give “involve” its full and ordinary meaning and give effect to the legislature’s words “in any other manner.”
¶92 The evidence here is sufficient for a rational trier of fact to reasonably conclude that Gonzales’s stepdaughter was involved in Gonzales’s drug transactions and that Gonzales involved her by not dismissing her or leaving himself before commencing his deals. I would affirm Gonzales’s conviction for involving his stepdaughter in two of his drug transactions.
Blakely
f93 Gonzales alleges that the trial court violated the rule in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), by imposing an exceptional sentence based on the aggravating factor of a major violation of the Uniform Controlled Substances Act (VUCSA), chapter 69.50 RCW. Former RCW 9.94A.535(2)(e) (2001). The majority agrees with Gonzales, holding that the trial judge made an impermissible finding of fact by treating the *32jury’s findings of more than three VUCSAs as a major VUCSA. In my view, when the jury found more than three VUCSAs, it found a major VUCSA by definition. The sentencing judge thus made no findings of fact. Therefore, I dissent.
¶94 The statute under which the trial judge sentenced Gonzales states, in part:
The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:
(i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so.
Former RCW 9.94A.535(2)(e).
¶95 The majority’s reading of the word “may” treats the word as though it points out an arguable conclusion that creates a factual question (e.g., “I may be taller than he is,” begging the question, “Am I taller?”). However, in the context of the statute in question, “may” has a permissive connotation (e.g., ‘You may proceed,” informing the listener that conditions are adequate to move forward). The statute lists six ways in which a major VUCSA can be established, former RCW 9.94A.535(2)(e)(i)-(vi), and it emphasizes that any one of the factors is independently sufficient to constitute a major VUCSA. In other words, if the jury finds three or more VUCSAs under former RCW 9.94A.535(2)(e)(i), the trial court can move forward by using the “major VUCSA” aggravating factor in its discretionary sentencing determination. “[Wlhether facts alleged and found are sufficiently substantial and compelling to warrant imposing an exceptional sentence” is a legal judgment which a sentencing judge may properly make under Blakely. State v. Hughes, 154 Wn.2d 118, 137, 110 P.3d 192 (2005), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
*33¶96 The trial judge did not infer that Gonzales’s VUCSAs were “ ‘more onerous than ... typical,’ ” as characterized by the majority. Majority at 6 (quoting former RCW 9.94A-.535(2)(e)). Rather, the legislature stipulated that a defendant’s offense is “more onerous than ... typical” when a jury finds three or more separate VUCSAs. The jury found more than three VUCSAs here.
¶97 The majority asserts that this case is “indistinguishable” from State v. Hagar, 158 Wn.2d 369, 144 P.3d 298 (2006). Majority at 22. In Hagar, the defendant stipulated to facts sufficient to establish that the crime involved multiple victims and multiple offenses per victim. The court imposed an exceptional sentence based on the court’s finding of the existence of the “major economic offense” aggravating factor. See former RCW 9.94A.535(2)(d) (2001). This court overturned Hagar’s sentence, holding, “Hagar stipulated [to] certain facts but did not stipulate that the crimes constituted a ‘major economic offense.’.. . Hagar’s sentence is in violation of Blakely because the exceptional sentence was predicated on an unstipulated fact that was not found by a jury beyond a reasonable doubt.” Hagar, 158 Wn.2d at 374.
¶98 The differences in the language of the two statutes at issue distinguish this case from Hagar. Former RCW 9.94A.535(2)(d), the statute at issue in Hagar, states, in part:
The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:
(i) The current offense involved multiple victims or multiple incidents per victim.
As discussed above, former RCW 9.94A.535(2)(e) explicitly makes the finding of three or more VUCSAs a “major VUCSA.” Conversely, former RCW 9.94A.535(2)(d) states that any combination of numerous predicate factors could be considered to determine whether an aggravating factor exists. Unlike the “major VUCSA” aggravating factor, the *34aggravating factor of a “major economic offense” does not have a set of facts that, if found, are sufficient by law to constitute the “major economic offense” aggravating factor. As such, under the statute in Hagar, the jury was required to find that the crimes constitute a “major economic offense” as described by former RCW 9.94A.535(2)(d),18 but no additional fact finding is necessary here.
¶99 The exceptional sentence imposed by the sentencing judge is valid despite the majority’s contention that it was procedurally impossible for the court to submit the aggravating facts to the jury during the trial. The majority cites In re Personal Restraint of Hall, 163 Wn.2d 346, 352-54, 181 P.3d 799 (2008), and State v. Womac, 160 Wn.2d 643, 663, 160 P.3d 40 (2007), for the proposition that the Sentencing Reform Act of 1981, chapter 9.94A RCW, at the time of Gonzales’s trial required the trial judge to find facts supporting an aggravating factor by a preponderance of the evidence. Majority at 23-24. That proposition does not apply to this case.
¶100 It is true that prior to 2005 there was no procedure allowing the trial court to submit to the jury questions of fact regarding aggravating factors. But here the jury did not need to find additional facts to support the aggravating factor. All the facts constituting the aggravating factor of a “major VUCSA” were necessarily found by the jury beyond a reasonable doubt as drug offense counts in Gonzales’s criminal trial.
¶101 The trial court did not make a finding of fact when it exercised its discretion to award Gonzales an exceptional sentence based on the jury’s findings of more than three separate violations of the Uniform Controlled Substances Act. The jury’s findings alone qualified the offenses as a *35“major VUCSA” under former RCW 9.94A.535(2)(e). The trial court appropriately exercised judicial discretion by assigning the exceptional sentence based on the “major VUCSA” aggravating factor, and it committed no Blakely violation.
¶102 For the foregoing reasons, I respectfully dissent from the majority opinion.
Fairhurst, J., concurs with Owens, J.We address Octavio Gonzales Flores by his patronymic surname.
‘We give words in a statute their plain and ordinary meaning unless a contrary intent is evidenced in the statute.” C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 708, 985 P.2d 262 (1999).
The majority also cites the United States Sentencing Guidelines Manual section 3B1.4 (2000) and case law interpreting it. Majority at 14-16. The two provisions are not comparable. Section 3B1.4 states, “If the defendant used or attempted to use a person less than eighteen years of age . . . .” “Use” has a very different meaning from “involve.” See Webster’s, supra, at 2523-24 (defining “use” in part as “to carry out a purpose or action by means of: make instrumental to an end or process : apply to advantage”).
The majority relies on the language of 21 U.S.C. § 861 that the dealer intend to make the child a participant in illegal behavior.
The majority also inaccurately states that Gonzales “did not have any contact with her, physical or verbal.” Majority at 17. The record shows that Gonzales and the child’s mother conversed with her throughout the transactions. VRP (Peb. 11, 2002) at 483-84, 487.
The majority also argues that former RCW 9.94A.535(2)(d) is indistinguishable from former RCW 9.94A.535(2)(e) because they both “allow! ], but do[ ] not compel, an exceptional sentence when the defendant commits multiple violations.” Majority at 22. However, imposition of an exceptional sentence is never compelled; it is always a matter of judicial discretion and thus not a meaningful test of the two statutes’ similarity. Hughes, 154 Wn.2d at 137.