¶71
(concurring in part and dissenting in part) — On October 17, 2008, Jay McKague, a homeless man, stole a can of smoked oysters from Kee Ho Chang’s grocery store. When Chang attempted to apprehend McKague in the store’s parking lot, McKague punched Chang, who fell to the ground. As Chang lay on the ground, McKague hit him several times before jumping into a car and fleeing the scene. Various witnesses testified that McKague hit Chang a total of 3 to 10 times; Chang testified that McKague hit him 6 times.
¶72 Chang testified that after the incident, when he tried to stand up, he got “very dizzy” so he sat on the ground for a while. 1 Report of Proceedings at 64. Photographs taken the day of the incident and three days later showed bruising around Chang’s left eye, redness and swelling of the left cheek, and a contusion on Chang’s head. The emergency room documented Chang’s injuries including a concussion, a scalp contusion, and neck and shoulder pain. A computerized axial tomography scan (CT scan) showed a possible occult fracture of Chang’s facial bones.20
¶73 The State charged McKague with first degree robbery, in violation of RCW 9A.56.200(1), and second degree assault, in violation of RCW 9A.36.021(l)(a). The jury found McKague guilty of third degree theft, in violation of former RCW 9A.56.050 (1998), as a lesser included offense of first degree robbery, and guilty of second degree assault as charged. Because McKague had prior felony convictions for second degree assault, first degree kidnapping, and first degree robbery, he was sentenced to life without the possibility of parole under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570.
¶74 I agree with the lead opinion that the trial court properly refused McKague’s bench trial request, that the jury instructions and the evidence properly support the jury verdict finding McKague guilty of second degree as*526sault, and concur that McKague’s convictions should be affirmed.
¶75 In my opinion, Judge Armstrong’s stated concern about the improper use of expert testimony to support the lead opinion’s second degree assault sufficiency analysis is unfounded. Concurrence/dissent (Armstrong, J.) at 524 n.19. Although the citation to expert treatises on the effects of concussion on the brain support our analysis, they are unnecessary to the sufficiency determination. Any modern parent whose child plays football, skateboards, or rides a bicycle has read the warning label regarding the importance of avoiding a brain injury (concussion). Moreover, many newspaper sports stories report on concussions that players in various sports sustain and the effect of these injuries on players’ skills and careers. In fact, the recent national awareness of the effects of concussions in sporting events started, in part, because of traumatic incidents that occurred in our state. The effects of concussions during school sporting events became of such public concern in our state that in 2009, our legislature passed a law prohibiting youth athletes suspected of sustaining a concussion from continuing to practice or play in a game without written medical clearance from a health care provider who has specialized concussion training.21 Laws of 2009, ch. 475, § 2. Thus, in my opinion what constitutes a concussion and the effects of a concussion are not subjects that required expert testimony. Here, the emergency room report established the fact of McKague’s concussion; it and the other evidence in the record discussed by the lead opinion is sufficient as a *527matter of law for any rational jury to find substantial injury beyond a reasonable doubt.
¶76 Because the legislature determined that the maximum sentence which may be imposed on a jury verdict finding McKague guilty of second degree assault is 10 years,22 however, and because the cases relied on in analyzing McKague’s challenges to his POAA sentence predate contrary controlling authority, I respectfully dissent from that portion of the opinion affirming McKague’s sentence of life without the possibility of parole.
¶77 In holding that McKague was not entitled to have a jury find him a persistent offender beyond a reasonable doubt before being sentenced to life without possibility of parole under the POAA, the lead opinion fails to comply with the constitutional principles elucidated in Apprendi23 and Blakely.24, Here, I reiterate and expand the analysis in my dissent in State v. Rudolph, 141 Wn. App. 59, 72, 168 P.3d 430 (2007), review denied, 163 Wn.2d 1045 (2008), that under Blakely, a trial court sitting without a jury may not constitutionally sentence a defendant to life without the possibility of parole on a class B felony that otherwise carries a maximum term of 10 years.
¶78 Recidivist statutes, such as the POAA, have been part of American sentencing for over 100 years. And dating back to at least 1912, courts and commentators have recognized that these habitual criminal prosecutions require proof of two matters: (1) the existence of prior convictions and (2) the identity of the defendant as the prior convict. See, e.g., Graham v. West Virginia, 224 U.S. 616, 32 *528S. Ct. 583, 56 L. Ed. 917 (1912); United States v. Jackson, 368 F.3d 59, 67-68 n.9 (2d Cir. 2004); Kyron Huigens, Solving the Apprendi Puzzle, 90 Geo. L.J. 387, 408 (2002). Historically, the State was required to prove to a jury beyond a reasonable doubt that the defendant to be sentenced under a recidivist statute was the person who was previously convicted of statutorily qualifying offenses. See State v. Furth, 5 Wn.2d 1, 10, 104 P.2d 925 (1940).
¶79 Under the current POAA statutes, the legislature requires that trial courts sentence “persistent offenders” to life without possibility of parole. RCW 9.94A.570. A “persistent offender” is an offender with three “strikes.” Former RCW 9.94A.030(37)(a)(i), (ii) (2008); State v. Crawford, 159 Wn.2d 86, 89-90, 147 P.3d 1288 (2006). “Strikes” are convictions for felonies that are “most serious offenses” as defined in former RCW 9.94A.030(32) (2008). Prior foreign convictions, including out-of-state convictions, are strikes if they are comparable to a Washington strike offense. Former RCW 9.94A.030(37)(a)(ii); In re Pers. Restraint of Lavery, 154 Wn.2d 249, 254, 111 P.3d 837 (2005). A trial court must sentence a defendant to life without possibility of parole upon a conviction for a third strike offense. RCW 9.94A.570.
¶80 When the Washington Legislature enacted the POAA, it withdrew the right to a jury trial. In a POAA proceeding, the legislature authorized judges to find, under a preponderance of evidence standard, whether the defendant was a persistent offender (habitual criminal). Our Supreme Court held that this procedure was constitutionally permissible and ruled that prior convictions resulting in a life without parole sentence need not be pleaded in the information, submitted to a jury, or proved beyond a reasonable doubt. State v. Wheeler, 145 Wn.2d 116, 117, 34 P.3d 799 (2001), cert. denied, 535 U.S. 996 (2002).
¶81 The Washington Supreme Court addressed the question of whether a defendant’s constitutional right to a jury trial is violated in a POAA proceeding in State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (1996). Relying on pre*529Apprendi case law, the court held that judicial sentencing under the POAA did not violate the right to a jury trial:
As a practical matter, since the only two questions of fact relevant to sentencing under the persistent offender section of the [Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW,] are whether certain kinds of prior convictions exist and whether the defendant was the subject of those convictions, we fail to see how the presence of a jury would be necessary. Prior convictions are proved by certified copies of the judgment and sentence, [State v. ]Murdock, 91 Wn.2d [336,] 340[, 588 P.2d 1143 (1979)], and identity (if contested) can be proved by fingerprints. The sentencing judge can make those determinations. While technically questions of fact, they are not the kinds of facts for which a jury trial would add to the safeguards available to a defendant. In fact, judges decide such questions of fact routinely at SRA sentencing proceedings. A certified copy of a judgment and sentence is highly reliable evidence. State v. Gentry, 125 Wn.2d 570, 637, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995); see [United States v. ]McGatha, 891 F.2d [1520,] 1526 [(11th Cir.), cert. denied, 495 U.S. 938 (1990)] (prior convictions are highly verifiable matters of public record). We find no constitutional bar to the provision of the SRA which allows a trial court to conduct the sentencing proceedings. RCW 9.94A.110.
Thorne, 129 Wn.2d at 783, cited in Almendarez-Torres v. United States, 523 U.S. 224, 246-47, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), and quoted in State v. Smith, 150 Wn.2d 135, 148, 75 P.3d 934 (2003), cert. denied, 541 U.S. 909 (2004). In summary, the Thorne court held that it is not necessary to impanel a jury for POAA sentencing because judges traditionally find these facts and the evidence is reliable.
¶82 After Apprendi, our Supreme Court continued to rely on Thorne’s outdated analysis and held in Smith and Wheeler that the procedure allowing a judge to find the fact of a prior conviction under the POAA does not violate the *530right to jury trial.25 Smith, 150 Wn.2d at 155; Wheeler, 145 Wn.2d at 121, 124. In Smith, the court quoted Thorne approvingly and adopted a preponderance of evidence standard for proof of a prior conviction. The Smith court reasoned that no additional safeguards are required because a certified copy of a judgment and sentence is highly reliable evidence. 150 Wn.2d at 143, following Wheeler, 145 Wn.2d 116.
|83 But after our Supreme Court issued Smith and Wheeler, the United States Supreme Court clarified the Sixth Amendment’s jury trial right in Blakely, 542 U.S. at 303-04, and Cunningham v. California, 549 U.S. 270, 281-88, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007). These recent United States Supreme Court opinions invalidate the basis for the analysis in Thorne, Smith, Wheeler, and other Washington cases that rely on that precedent.
¶84 A criminal defendant’s jury trial right is the foundation and heart of our criminal justice system. In Blakely, Justice Scalia, writing for the majority, concluded bluntly,
The Framers would not have thought it too much to demand that, before depriving a man of... his liberty, the State should suffer the modest inconvenience of submitting its accusation to “the unanimous suffrage of twelve of his equals and neighbours,” [4 William Blackstone, Commentaries 343 (1769)], rather than [the judge,] a lone employee of the State.
542 U.S. at 313-14.
¶85 Except on a jury’s verdict finding a defendant guilty of aggravated first degree murder, no Washington trial court may impose a sentence of life without possibility of parole based on the jury’s verdict alone. Under controlling Sixth Amendment analysis, a legislature’s characterization of necessary factual findings as “sentencing factors” rather than “elements” is irrelevant. The Blakely Court outright *531rejected the interpretation of Apprendi that a “jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge.” 542 U.S. at 306. The Court stated that this approach would lead to “absurd result[s]” and would undermine an essential jury function:
The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.
Blakely, 542 U.S. at 306-07.26
¶86 And most recently, in Cunningham, the United States Supreme Court again flatly rejected attempts to base the jury trial right on a sentencing code’s structure, the historical discretion of courts in determining facts that underlie higher sentences, or the reliability of evidence to support increased penalties. 549 U.S. at 283-86, 290. These discredited rationales are the sole bases on which Thorne relies. After Cunningham, it is clear that the defendant’s right to a jury trial rests on a “bright-line rule” that is not subject to policy concerns such as what the legislature intended or whether the evidence that the fact finder is to evaluate is particularly reliable. 549 U.S. at 283-86, 290; see also Washington v. Recuenco, 548 U.S. 212, 220, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (holding that there is no distinction in the right to jury trial between “sentencing factors” and “elements”).
¶87 Apprendi, 530 U.S. 466, and its progeny overruled the precedent on which Thorne rests. The Thorne court *532summarized the then current law, saying, “[T]he United States Supreme Court has repeatedly held that a defendant does not enjoy a constitutional right to a jury determination as to the appropriate sentence to be imposed even where the sentence turns on specific findings of fact.” 129 Wn.2d at 782.Apprendi overruled this interpretation of the Sixth Amendment and eroded Thorne. Likewise, because Smith and Wheeler are premised on Thorne and a pre-Blakely and pre-Cunningham understanding of the right to jury trial, they are no longer good authority on this issue.
¶88 After Blakely, our Supreme Court reiterated, but qualified, the rulings of Smith and Wheeler. See Lavery, 154 Wn.2d at 256-57 (discussing Smith, 150 Wn.2d 135, and Wheeler, 145 Wn.2d 116). In Lavery,27 the court first held that “[l]ife without possibility of parole is a penalty beyond the statutory maximum for the crime of second degree robbery,” and held that Apprendi applied.28 154 Wn.2d at 256. The court then reiterated its rulings in Smith and Wheeler. Lavery, 154 Wn.2d at 256-57. And it held that a jury must determine facts relating to comparability analysis when foreign crimes are not facially identical to Washington offenses. Lavery, 154 Wn.2d at 258. Thus, in Lavery, the court implicitly ruled that the right to jury trial applies to facts at POAA sentencing, while accepting that the “prior conviction” exception allows a judge to determine legal comparability in many situations.29 In doing so, the court rejected the notion that the POAA is exempt from the Sixth *533Amendment right to jury trial because it is a recidivist statute.
¶89 Blakely and Apprendi are grounded in the United States Constitution’s Sixth Amendment. These cases establish that a defendant’s minimum jury trial right includes the right to have the fact of the existence of a prior conviction proved beyond a reasonable doubt to a jury30 before a POAA sentence of life without the possibility of parole may be imposed on someone found guilty by a jury of a class B or lower felony.31
¶90 The lead opinion characterizes Blakely and Cunningham as “[t]wo additional cases, on which McKague and Judge Quinn-Brintnall’s concurrence/dissent rely, [that] also affirm the rule of Almendarez-Torres.” Lead opinion at 513 n.12. Blakely and Cunningham do state that the fact of a prior conviction need not be proved to a jury beyond a reasonable doubt. But, unlike here, Blakely and Cunningham address circumstances in which the sentence considered lies within the legislature’s maximum penalty for the offense of conviction. Blakely, 542 U.S. at 299-300 (concerning an exceptional sentence of 90 months, which represented a 37-month increase beyond the standard sentencing range, but that did not exceed the 10-year statutory maximum for a class B felony); Cunningham, 549 U.S. at 275-76 (imposing the maximum permitted statutory sentence because of aggravating factors). In other words, if, as a recidivist, McKague faced a maximum POAA sentence of 10 years (the statutory maximum for the crime the jury found he committed), the Almendarez-Torres prior conviction exception would be consistent with the application of the constitutional principle announced in Apprendi and *534Blakely and McKague would have received his full Sixth Amendment jury trial rights. But where the trial court seeks to impose a sentence that exceeds the one supported by the jury verdict, here the period in excess of 10 years and for the rest of McKague’s life, the defendant’s right to have his sentence supported by a jury’s verdict remains unfulfilled.
¶91 The lead opinion also cites a post -Blakely POAA case, State v. Thiefault, 160 Wn.2d 409, 158 P.3d 580 (2007), and asserts that “[u]ntil such time as our Supreme Court overrules itself, we are bound by its holding on the issue before us here.” Lead opinion at 514. The Thiefault court stated that it had “repeatedly... held that Apprendi and its progeny do not require the State to submit a defendant’s prior convictions to a jury and prove them beyond a reasonable doubt.” 160 Wn.2d at 418. The Thiefault court’s statement relies on Lavery, Smith, Wheeler, and AlmendarezTorres. Thiefault, 160 Wn.2d at 418. But Smith and Wheeler are no longer good law after Blakely. Arid Lavery did not cite Blakely or address the constitutional principles underpinning Blakely’s application of Apprendi to sentences in excess of the standard range but within the range of the maximum possible penalty set by the legislature. Accordingly, although Thiefault states that a defendant in a POAA proceeding has no right to have his prior convictions proved to a jury beyond a reasonable doubt, there is no valid law supporting this statement, particularly in situations when the imposed sentence exceeds legislatively mandated statutory maximum penalties.
¶92 Moreover, controlling authority from the United States Supreme Court does not require lower courts to apply higher court holdings that violate the constitution. Unlike the situation addressed in Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997), in which the apparently controlling precedent rested “ ‘on reasons rejected in some other line of decisions’ ” (emphasis added) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d *535526 (1989)), here the most recent and controlling precedent of our nation’s highest court, Blakely, directly precludes imposing a sentence not supported by the jury’s verdict and in excess of the statutorily proscribed maximum penalty. Specifically, Justice Scalia’s unambiguous conclusion that before depriving a criminal defendant of years of his or her liberty “beyond what the law allowed for the crime,” that “the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neighbours,’ 4 Blackstone, supra, at 343, rather than [the judge,] a lone employee of the State.” Blakely, 542 U.S. at 313-14. Thus, the Blakely court clarified that Apprendi’s and Almendarez-Torres’s prior conviction exception does not apply in cases where the trial court wishes to impose a sentence in excess of the statutory maximum without a supporting jury verdict.32
¶93 In addition, in my opinion, by rejecting the State’s first degree robbery charge, a class A felony with a possible life sentence under RCW 9A.20.021(l)(a), and finding McKague guilty of third degree theft (a gross misdemeanor) and second degree assault (a class B felony), the jury who sat in judgment of McKague clearly indicated its intention to show leniency to a hungry homeless man who stole a can of smoked oysters. By sentencing McKague to life without the possibility of parole on the jury’s verdict rejecting the State’s class A felony charge and finding him guilty of only a gross misdemeanor and a class B felony, the trial court in this case imposed a sentence in excess of that supported by the jury verdict and, therefore, beyond its constitutional authority. Accordingly, I would reverse the sentence but affirm the convictions.
An occult fracture is one believed to exist but where the exact location cannot be determined. See Webster’s Third New International Dictionary 1560 (2002) (defining “occult” as “not manifest or detectable by clinical methods alone”).
In particular, our legislature chose to address student athlete safety concerns after an incident in 2006 when 13-year-old Zachery Lystedt, after whom the 2009 law is named, was a student at Tahoma Junior High and continued playing football after a concussion went unnoticed. Laws op 2009, ch. 475, § 2. Hours after the game ended, Lystedt slipped into a coma for three months, underwent extensive brain surgeries, and has undergone years of intensive therapy just to be able to swallow and speak again. Tom Wyrwich, Special Report: The Dangers of Adolescents Playing Football with Concussions, The Seattle Times (Nov. 4, 2008), available at http://seattletimes.nwsource.com/html/highschoolsports/2008347382 _concussions04.html.
Second degree assault is a class B felony. RCW 9A.36.021(2)(a). The statutory maximum sentence for class B felonies is 10 years. RCW 9A.20.021(l)(b). But under the Sentencing Reform Act of 1981, ch. 9.94A RCW, second degree assault is a level four seriousness offense. Former RCW 9.94A.515 (2007). When a defendant’s offender score is 9 or more, and here McKague’s offender score was 11, the presumptive sentencing range for a level four offense is 63 to 84 months. RCW 9.94A.510.
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
The Washington Constitution is not more protective than is the federal constitution in the arena of POAA sentencing. Smith, 150 Wn.2d at 156.
Our Supreme Court neither cited nor addressed this Blakely holding when it held that the State need not notify a defendant that he faces a POAA sentence and reasoned that (1) the POAA is a sentencing statute, not a statute defining the elements of the crime; (2) the legislature alone fixes sentencing procedures; (3) the legislature does not explicitly require pretrial notice of POAA sentences; and (4) therefore, notice is not required. Crawford, 159 Wn.2d at 93-96. This rationale contradicts Blakely and Cunningham.
The Lavery court did not discuss or cite Blakely.
Laver/s second degree robbery conviction (without a jury finding of aggravating factors) subjected him to a maximum penalty of 84 months under the SRA. Lavery, 154 Wn.2d at 254.
One month after our Supreme Court published Lavery, this court issued State v. Ball, 127 Wn. App. 956, 113 P.3d 520 (2005), review denied, 156 Wn.2d 1018 (2006). Ball focused on the necessity of separately proving Washington State convictions of which the trial court had authority to take judicial notice. It did not expressly address the Lavery court’s analysis holding that under Apprendi, a sentence of life without possibility of parole exceeds the statutory maximum that may be imposed on a jury’s guilty verdict. Lavery, 154 Wn.2d at 256. But cf. State v. Magers, 164 Wn.2d 174, 193, 189 P.3d 126 (2008) (holding that “the Court of Appeals has held that Blakely does not apply to sentencing under the POAA, Blakely being specifically directed at exceptional sentences. [Ball, 127 Wn. App. at *533957, 959-60]. We agree with this conclusion and determine that Blakely has no application to the instant case.”).
This element does not require proving the elements of the prior strike offense anew; rather only proof beyond a reasonable doubt that the defendant alleged to be a persistent offender is the person previously convicted of that offense is required.
Because McKague’s due process rights were violated, I do not address his sentencing equal protection argument.
The lead opinion cites United States v. O’Brien,_U.S._, 130 S. Ct. 2169, 176 L. Ed. 2d 979 (2010), as “recognizing [the Apprendi] exception carved out by Almendarez-Torres.” Lead opinion at 513. But O’Brien concerned whether a firearm was an element of a substantive offense charged under federal law. The O’Brien Court did not address recidivism questions or analyze and apply the Apprendi prior conviction exception. Accordingly, O’Brien’s mere recitation of the Apprendi exception does not supplant Cunningham’s analysis and, therefore, Cunningham remains the controlling authority on this matter.