¶26 (concurring) — The majority properly reverses Brian Eggleston’s exceptional sentence under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Therefore the majority declines to consider whether collateral estoppel bars an exceptional sentence for allegedly killing a person the defendant knew to be a police officer.6 However, this question must be answered. If collateral estoppel bars the trial court from using Eggleston’s alleged knowledge to impose an exceptional sentence, then we must vacate it as baseless and have no need to reach the Blakely issue.
¶27 Collateral estoppel bars relitigating a fact that (1) was decided by the prior jury and (2) determines an ultimate fact or issue in the current case. Dowling v. United States, 493 U.S. 342, 348, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990). The fact at issue is whether Eggleston knew Deputy John Bananola was a police officer when he shot him. The majority errs by refusing to credit the second jury’s special *78verdict that Eggleston did not.7 Majority at 73. It further errs when it opines Eggleston’s knowledge was not an ultimate issue in the third trial. Id. at 73-74. However, the second jury’s special verdict did decide that fact, even if the verdict was not strictly necessary, and the fact is ultimate insofar as it was used as the basis for an exceptional sentence.
¶28 The second jury’s special verdict specifically answered Eggleston did not know Bananola was a police officer. Answers contained in a special verdict “are dispositive of the questions put to the jury.” Mitchell v. Prunty, 107 F.3d 1337, 1339 n.2 (9th Cir. 1997) (“Having agreed to the questions, the government cannot now ask us to ignore the answers; to do so would be a clear violation of petitioner’s Sixth Amendment rights.”), overruled in part on other grounds by Santamaria v. Horsley, 133 F.3d 1242 (9th Cir. 1998).
¶29 Although the jury may not have been required to answer the special verdict, that is not dispositive. Erroneous special verdicts by a jury are enforceable, just as a verdict of acquittal is enforceable, even where the verdict was clearly in error. See Fong Foo v. United States, 369 U.S. 141, 82 S. Ct. 671, 7 L. Ed. 2d 629 (1962); United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S. Ct. 1349, 51L. Ed. 2d 642 (1977). This is true even where “the acquittal was based upon an egregiously erroneous foundation,” including the inability to enter a verdict. Fong Foo, 369 U.S. at 143; Sanabria v. United States, 437 U.S. 54, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978). Even if the jury lacks authority to render a verdict, the jury’s special verdict must be given effect under Fong Foo.
¶30 The Ninth Circuit follows Supreme Court precedent by giving effect to a jury’s verdict even where the jury was not required to complete the verdict form. For example, in Stow v. Murashige, 389 F.3d 880, 883 (9th Cir. 2004), the defendant was charged with attempted first degree murder and two counts of attempted murder in the second degree. *79The jury was instructed, “ Tf you find the defendant not guilty ... of attempted murder in the first degree, . . . then you must consider whether the defendant is guilty ... of attempted murder in the second degree.’ ” Id. at 884. The jury found the defendant guilty of attempted murder in the first degree but indicated not guilty next to each of the attempted murder in the second degree charges. Id. The Ninth Circuit held these “not guilty” notations, although unnecessary and contrary to the jury instructions, were valid acquittals of the lesser included offenses. Id. at 888-92. The Ninth Circuit applies this rationale to hold special verdicts entered in error are valid and enforceable. Hoyle v. Ada County, 501 F.3d 1053 (9th Cir. 2007) (holding notations next to predicate acts are valid, even where the jury was instructed to skip the special verdict section), cert, denied, 128 S. Ct. 1482 (2008). Like Stow and Hoyle, here Eggleston’s second jury was not required to answer the special verdict form, but it did, thus determining the issue for future trials.
¶31 The majority improperly relies upon United States v. Statler, 157 U.S. 277, 279, 15 S. Ct. 616, 39 L. Ed. 700 (1895) to minimize, and ultimately ignore, the second jury’s special verdict. Majority at 72-73. In Statler, the defendant was charged “with ‘having counterfeit coin in his possession with intent to defraud certain persons to this grand inquest unknown.’ ” Statler, 157 U.S. at 277. Prior to trial, the defendant admitted to possession of the coin, leaving the defendant’s intent to defraud the only issue for the jury. Id. at 277-78. The jury wrote on the verdict form, “ ‘the jury finds the defendant guilty in the first count for having in possession counterfeit minor coin.’ ” Id. at 278. Thereafter the defendant argued the verdict was invalid because the jury’s verdict indicates it did not intend to find him guilty. Id. However, the Court rejected this argument, holding the verdict was complete when it said, “ ‘guilty in the first count.’ ” Id. It disregarded the extra language, stating, “ ‘If the jury give a verdict of the whole issue and of more, . . . that which is more is surplusage and *80shall not stay judgment, for utile per inutile non vitiatur.’ ”8 Id. at 279 (second alteration in original) (internal quotation marks omitted) (quoting 1 Giles Duncomb, Trials per Pais: or, the Law of England Concerning Juries by Nisi Prius 287 (London, H. Woodfall & W. Strahan, Law Printers; for T. Waller, 8th ed. 1766) (1665)).
¶32 However Statler is inapposite to this case because, contrary to the majority’s assertion, this jury’s verdict contained no surplus language. The jury’s answer to the special verdict form was a simple, yet responsive “No.” Although the jury was not required to return this verdict, the answer given did not contain any unresponsive language, unlike the verdict in Statler.
¶33 Perhaps of greater importance, Statler does not permit a court to disregard a clear verdict by the jury, but instead requires courts to give effect to the otherwise “good and valid” verdict. Statler, 157 U.S. at 279. But the majority stands Statler on its head by vitiating “that which in other respects is good and valid.” Herbert Broom, A Selection of Legal Maxims: Classified and Illustrated 425 (R.H. Kersley ed., 10th ed. 1939) (1845).
¶34 Once the court gives effect to the second jury’s special verdict, Eggleston cannot be given an exceptional sentence for knowingly killing a police officer contrary to the jury’s verdict. Collateral estoppel bars relitigation of a previously decided fact when that fact determines an ultimate issue in the current trial. Dowling, 493 U.S. 342. While “evidence of motive [ ]or different self-defense instructions”9 are not ultimate issues, the facts supporting the imposition of an exceptional sentence are.
¶35 A fact sufficient to impose an exceptional sentence is equivalent to one establishing an element of a crime. Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d *81556 (2002); State v. Goodman, 150 Wn.2d 774, 785-86, 83 P.3d 410 (2004). As the equivalent to an element of a crime, a fact used to impose an exceptional sentence is an ultimate issue. Santamaria, 138 F.3d 1280; see also People v. Superior Court, 1 Cal. 4th 56, 78 n.22, 820 P.2d 613, 2 Cal. Rptr. 2d 389 (1991) (“The jury’s rejection constituted an express acquittal on the enhancement and forecloses any retrial.”). An exceptional sentence cannot be imposed where a jury would be required to “reach [ ] a directly contrary conclusion” to a prior jury. Dowling, 493 U.S. at 348 (citing Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)). Because a fact determined by a special verdict bars imposing an exceptional sentence contrary to that fact, Eggleston’s exceptional sentence must be vacated notwithstanding any Blakely violation.
¶36 Here, the second jury clearly found Eggleston did not know Bananola was a police officer when he shot him. This finding is preclusive on the parties in all future trials. But the trial court, much like our majority, refused to credit the second jury’s verdict; rather it imposed an exceptional sentence directly contrary to the jury’s verdict. This was error. Eggleston’s exceptional sentence must be vacated.
¶37 I concur in reversal.
C. Johnson, J., concurs with Sanders, J.The majority refuses to answer this question, stating, “Since the exceptional sentence was reversed based on Blakely, we do not address this contention.” Majority at 75 n.4.
The majority holds, “[T]he jury’s answer in the special verdict was unnecessary, irrelevant, and in violation of the court’s instructions, and we decline to consider it.” Majority at 73.
“Surplusage does not vitiate that which in other respects is good and valid.” Herbert Broom, A Selection of Legal Maxims: Classified and Illustrated 425 (R.H. Kersley ed., 10th ed. 1939) (1845).
Majority at 74.