¶28 concurring — I join Chief Judge Quinn-Brintnall’s analysis on the prosecutorial misconduct and waiver issues. As to the section entitled “Application of Blakely to Sentences under RCW 9.94A.712,” I concur in *451the result only and write separately to emphasize my two concerns.
Houghton, J.,*451¶29 First, I disagree with Chief Judge Quinn-Brintnall’s description of Blakely errors as “procedural.” Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh’g denied, 542 U.S. 961 (2004). See Chief Judge Quinn-Brintnall’s opinion at 446. As we held in State v. Fero, Blakely errors are structural and thus not subject to the harmless error analysis. State v. Fero, 125 Wn. App. 84, 101, 104 P.3d 49, 58 (2005). This holding derived from the language of Blakely itself, which characterized the right to a trial by jury as “no mere procedural formality, but a fundamental reservation of power in our constitutional structure.” Blakely, 542 U.S. at 306.
¶30 Washington case law also supports application of the structural error doctrine. State v. Thomas, 150 Wn.2d 821, 849, 83 P.3d 970 (2004); see also State v. Jones, 126 Wn. App. 136, 147, 107 P.3d 755 (2005) (Division One opinion rejecting the State’s harmless error argument under Thomas, but stating that the claim “is more properly directed to the state supreme court”). In Thomas, the court held that erroneous “to convict” instructions are generally subject to the harmless error analysis. 150 Wn.2d at 849. But “a harmless error analysis of an erroneous jury instruction may not be available to uphold an aggravated conviction or sentence under Apprendi [p. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,147 L. Ed. 2d 435 (2000)] and Ring [p. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002)].” Thomas, 150 Wn.2d at 849.
¶31 Blakely and Thomas indicate that when the trial court finds aggravating factors that increase the penalty beyond the statutory maximum, it commits a structural error warranting automatic reversal.
¶32 Second, I disagree with Chief Judge QuinnBrintnall’s statement that the exceptional minimum sentence is not “directly” affected by Blakely. See Chief Judge Quinn-Brintnall’s opinion at 446. The minimum and maximum sentences are equally subject to Blakely’s demands.
*452133 As defined in Blakely, the “statutory maximum” is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303 (emphasis omitted). Otherwise stated, the statutory maximum “is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at 303-04 (emphasis omitted).
¶34 Under RCW 9.94A.712, the trial court does not have statutory authority to impose an exceptional minimum sentence unless the offender is “otherwise eligible.” And the offender is “otherwise eligible” only upon a factual finding of aggravating factors. RCW 9.94A.712, .535. Because the “statutory maximum” is “the maximum [the trial court] may impose without any additional findings,” Blakely, 542 U.S. at 304 (some emphasis added), the relevant statutory maximum for purposes of RCW 9.94A.712 is the top of the offender’s standard range.
¶35 Blakely teaches that before the trial court imposes an exceptional sentence, the jury must find the necessary facts beyond a reasonable doubt, or the defendant himself must admit those facts. That was not done here. For these reasons, I concur in the result reached by Chief Judge Quinn-Brintnall.