(dissenting) — I respectfully dissent. First, the real facts doctrine was not violated because the trial court did not improperly consider facts that were “part and parcel of the current offense.” State v. Reynolds, 80 Wn. App. 851, 857, 912 P.2d 494 (1996). Second, the real facts doctrine *461should not be interpreted to prevent a trial court from considering offense facts indicating an assault against one person, the direct victim, for the purpose of domestic violence retribution against a third person. I would affirm based solely on the second reason, assuming the facts incidentally show a greater crime against the direct victim. An assault against one person for the purpose of punishing another in a domestic violence context should be recognized as a legally sufficient nonstatutory aggravating factor justifying an exceptional sentence.
Particularly egregious circumstances distinguishing a charged crime and making it atypical is a recognized reason supporting an exceptional sentence. State v. Quiros, 78 Wn. App. 134, 139-40, 896 P.2d 91 (1995). Here, unchallenged findings show Mr. Morreira drove across the center line into the victim’s lane of traffic in an attempt to hit the victim. The victim swerved his motorcycle to avoid being hit by Mr. Morreira. Mr. Morreira next turned and accelerated as he approached the then dismounted victim standing in the middle of the road. Mr. Morreira drove “head on” into the victim, flipping him over the hood of the car. Mr. Morreira then stopped his car, got out, and told the victim’s passenger, Mr. Morreira’s estranged wife, “See, I told you I’d get you.” Clerk’s Papers (CP) at 41.
The facts show both a particularly egregious assault to cause bodily injury compared to other second degree assaults of this type, and an independent intent to punish Mr. Morreira’s estranged wife at the direct victim’s expense. The second domestic violence intent is independent from the intent to assault the direct victim, thus the real facts doctrine is not implicated. Given this independent retributive domestic violence purpose, I would decide egregious circumstances distinguish Mr. Morreira’s crime from typical assaults involving deadly weapons. Quiros, 78 Wn. App. at 140.
Under the plain terms of RCW 9.94A.370(2), the sentencing court may not consider facts probative of a more serious crime unless (1) the defendant stipulates to those facts, or *462(2) the facts fall within set exceptions. See State v. Azpitarte, 140 Wn.2d 138, 142, 995 P.2d 31 (2000). However, Mr. Morreira’s intent to intimidate and punish Ms. Morreira does not establish facts probative of a more serious crime. The critical focus is the intent to punish a third person.
In sum, I would hold an assault on a non-family member in a domestic violence retribution setting supports a nonstatutory aggravated factor analogous to the domestic violence factor set forth in RCW 9.94A.390(2)(h) “that is sufficiently compelling to support an exceptional sentence for an assault conviction.” State v. Chance, 105 Wn. App. 291, 298, 19 P.3d 490 (2001) (formulating nonstatutory aggravating factor for retaliation against prosecutor). Accordingly, I would affirm.