¶55 (dissenting) — The majority holds that juvenile adjudications count as prior convictions and there*280fore are not subject to the rule that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The majority’s holding is inconsistent with the United States Supreme Court’s reasons for excluding prior convictions from the rule, and with statutes and case law from this state. Fundamentally, the majority’s conclusion condones a significant violation of Mr. Weber’s due process rights and further undermines the purposes of our Juvenile Justice Act of 1977, chapter 13.40 RCW.
Madsen, J.*280f56 In addition, prosecutorial misconduct in this case requires a new trial, contrary to the majority’s view. I respectfully dissent.
ANALYSIS
¶57 In addressing the question whether a juvenile adjudication counts as a prior conviction for purposes of Apprendi’s rule, the majority unfortunately dismisses the importance of the other cases that give meaning to the rule, leading to its erroneous conclusion that juvenile adjudications count as prior convictions. When the Court decided Apprendi, it did not do so in a vacuum. Rather, Apprendi drew from prior decisions. The Court could not have been clearer about this, as it explained:
The question whether Apprendi had a constitutional right to have a jury find [asserted] bias on the basis of proof beyond a reasonable doubt is starkly presented.
Our answer to that question was foreshadowed by our opinion in Jones v. United States, 526 U.S. 227[, 119 S. Ct. 1215, 143 L. Ed. 2d 311] (1999), construing a federal statute. We there noted that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a *281reasonable doubt.” [526 U.S.] at 243, n.6. The Fourteenth Amendment commands the same answer in this case involving a state statute.
[O]ur reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.
Apprendi, 530 U.S. at 475-76, 490. The rule was subsequently refined by the Court when it added that “statutory maximum” means the maximum sentence that a judge may impose “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (emphasis omitted).
158 To understand Apprendi, it is imperative to understand Jones because in Jones the Court explained why it had held it was permissible, in Almendarez-Torres v. United States, 523 U.S. 224, 243-44, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), to use a prior conviction as a sentencing factor to increase a statutorily mandated maximum punishment.8 The Court said in Jones that “unlike virtually any other consideration used to enlarge the possible penalty for an offense,... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Jones, 526 U.S. at 249 (emphasis added).9
*282¶59 Thus, the prior conviction exception to the rule stated in Apprendi is premised on there having been specific constitutional safeguards underlying a prior conviction used to increase the punishment for a subsequent offense. Therefore, in order to fall within the prior conviction exception to the rule in Apprendi, a juvenile adjudication must have had the same constitutional safeguards in place as in Jones, in particular the right to trial by jury and proof beyond a reasonable doubt.
¶60 Other courts have reached this conclusion after carefully examining the Court’s cases. In United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001), the Ninth Circuit read Jones and Apprendi to mean that “the ‘prior conviction’ exception to Apprendi’s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.” If juvenile adjudications lack these due process guaranties, the court reasoned, they do not fall within the exception. Id. Further, the Ninth Circuit said that insofar as the government argued that the exception should be extended to include nonjury juvenile adjudications, the “Apprendi Court’s serious reservations about the reasoning of Almendarez-Torres counselled] against any extension[s].” Id.; see Apprendi, 530 U.S. at 487, 489-90 (noting that it was arguable that Almendarez-Torres was wrongly decided). Other courts have also held that juvenile adjudications do not fall within the prior conviction exception. State v. Harris, 339 Or. 157, 118 P.3d 236 (2005); State v. Brown, 03-2788 (La. 7/6/04), 879 So. 2d 1276.
¶61 The majority rejects Tighe and similar cases, relying instead on the reasoning of courts that have concluded that juvenile proceedings provide sufficient procedural safeguards to qualify under the prior conviction exception. In United States v. Smalley, 294 F.3d 1030, 1032-33 (8th Cir. 2002), for example, the court reasoned that whether juvenile adjudications should be exempt from Apprendi’s rule should turn on “an examination of whether juvenile adju*283dications, like adult convictions, are so reliable that due process of law is not offended by such an exemption.” See also, e.g., United States v. Jones, 332 F.3d 688 (3d Cir. 2003); State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002).
¶62 This reliance is misplaced. There are critical differences between the due process necessary for a juvenile adjudication and the due process safeguards required for an adult conviction. The differences exist because the juvenile justice system is fundamentally different from and serves different purposes than the criminal justice system.
¶63 While the Juvenile Justice Act has been amended many times over the years, the act has always focused on the needs of the juvenile and the goals of rehabilitation and accountability. State v. Watson, 146 Wn.2d 947, 952-53, 51 P.3d 66 (2002); Monroe v. Soliz, 132 Wn.2d 414, 419-20, 939 P.2d 205 (1997) (Juvenile Justice Act’s policy is holding juveniles accountable for their acts and responding to the needs of juvenile offenders); State v. Schaaf, 109 Wn.2d 1, 4, 743 P.2d 240 (1987) (juvenile justice system is rehabilitative in nature while the criminal system is punitive); State v. Meade, 129 Wn. App. 918, 925, ¶ 15, 120 P.3d 975 (2005) (Juvenile Justice Act remains focused on rehabilitation); State v. K.E., 97 Wn. App. 273, 982 P.2d 1212 (1999) (a court may impose a downward disposition if it finds that the standard range disposition would be an excessive penalty because less time is needed for rehabilitation); State v. J.H., 96 Wn. App. 167, 172-75, 185, 978 P.2d 1121 (1999) (addressing 1997 amendments and concluding that legislative intent had changed only insofar as it increased the emphasis on responding to the needs of juvenile offenders, and the only purpose added to the Juvenile Justice Act list of purposes was encouragement of the juvenile’s parents, guardian’s, or custodian’s active participation in the juvenile justice process; and, while fair to say that 1997 amendments increased emphasis on accountability for serious criminal activity, amendments also enhanced court’s ability to address juvenile offenders’ needs, with emphasis still placed on rehabilitation, whereas adult system focuses *284almost entirely on punishment); see also, e.g., RCW 13-.40.010(2) (listing goals of the Juvenile Justice Act, including protection of the public, accountability, punishment, and provision of necessary treatment for juvenile offenders); RCW 13.40.320 (addressing juvenile offender basic training camps and stating that they must emphasize building self-esteem, confidence, and discipline and shall include rehabilitation and training components); RCW 13.40.038 (state policy is that “juvenile detention facilities provide a humane, safe, and rehabilitative environment”); RCW 13-.40.460 (addressing administration of juvenile rehabilitation programs); RCW 13.40.500-.540 (concerning community juvenile accountability programs).
¶64 In fact, it is because of the fundamental difference between the juvenile justice system and the criminal system that the United States Supreme Court and this state’s appellate courts have held that there is no right to a jury trial in the juvenile justice system. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971); Monroe, 132 Wn.2d at 419-20; Schaaf, 109 Wn.2d 1; State v. Lawley, 91 Wn.2d 654, 591 P.2d 772 (1979); In re Welfare of Estes, 73 Wn.2d 263, 265-68, 438 P.2d 205 (1968); cf. Meade, 129 Wn. App. at 925-26, ¶ 16 (juvenile has no right to a jury to find facts that would support a manifest injustice disposition). In contrast, the criminal justice system is primarily punitive. Monroe, 132 Wn.2d at 420.
¶65 The decision in McKeiver that fundamental fairness does not require a jury trial in juvenile adjudications is based on the fact that the juvenile who is adjudicated is not treated as a criminal. This court found the same to be true of this state’s juvenile justice system. Lawley, 91 Wn.2d 654. And with each new challenge following legislative amendments, as occurred in Lawley, the court has confirmed this conclusion. The Juvenile Justice Act still emphasizes accountability and rehabilitation, with individualized treatment of the offender.
*285¶66 Cases settling for a “reliability” standard for juvenile adjudications disregard the role that the jury plays in assuring a fair decision. The United States Supreme Court explained that the protection that comes with a jury entails more than merely finding the facts:
The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.
Duncan v. Louisiana, 391 U.S. 145, 155-56, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (footnote omitted).
f 67 Because the right to a jury trial involves far more than a simple matter of determining the facts supporting a guilty verdict, the absence of that right in the juvenile justice system militates strongly against equating a juve*286nile adjudication to a criminal conviction obtained following a proceeding where the right to a jury trial attached. A juvenile adjudication without a jury determination does not compare to a criminal conviction following a trial by jury and should not be exempt from the rule that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
¶68 The majority also points out, though, that the legislature has dictated inclusion of juvenile adjudications in criminal history and enacted statutes providing that “adjudication” has the same meaning as “conviction.” Majority at 263-64. Whether the legislature has included juvenile adjudications as part of criminal history has no bearing on whether these adjudications can be included under Apprendi and Blakely. As to RCW 13.04.011(1), which says that “adjudication” has the same meaning as “conviction,” the Court of Appeals has correctly concluded that this definition has engendered some confusion about terminology but, regardless, the features of the juvenile justice system that have weighed against finding a right to a jury trial remain the same. J.H., 96 Wn. App. at 175. The juvenile justice system and the criminal justice system are still demonstrably different, with different emphasis and different consequences.
¶69 Finally, most commentators addressing this issue argue forcefully that a juvenile adjudication does not fall within the “prior conviction” exception to the Apprendi rule. One says, in summary, that “[s]ince the juvenile system of justice was founded on the principle of rehabilitation, and continues to embrace the ‘rehabilitative ideal’ in modern times, there are significant constitutional differences in the degree of procedural due process and fundamental fairness involved in adult convictions and juvenile adjudications” and because “juvenile adjudications [are] subject to less stringent procedural standards than adult criminal proceedings,” the Apprendi rule “must be limited to prior *287convictions that were themselves obtained through proceedings affording individual defendants the same procedural safeguards they would be entitled to in the adult criminal justice system.” Stephen F. Donahoe, Note, The Problem With Forgiving (But Not Entirely Forgetting) the Crimes of Our Nation’s Youth: Exploring the Third Circuit’s Unconstitutional Use of Nonjury Juvenile Adjudications in Armed Career Criminal Sentencing, 66 U. Pitt. L. Rev. 887, 907 (2005); see also Kimberly L. Johnson, Note & Comment, Should Juvenile Adjudications Count as Convictions for Apprendi Purposes?, 20 Ga. St. U. L. Rev. 791 (2004) (juvenile adjudications do not come within the prior conviction exception to the Apprendi rule; the juvenile system is different from the criminal justice system in that juvenile adjudications have a rehabilitative purpose and juveniles do not have the same rights as adults in the criminal justice system, in particular the right to trial by jury).
¶70 Another concludes that the “Supreme Court’s recent jury trial jurisprudence and its findings in Ballew [v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978)] concerning the relative reliability of larger fact-finding bodies suggest that the Tighe court’s understanding of juvenile adjudications is more constitutionally sound than that espoused by the Smalley court.” Casenote, Eighth Circuit Holds an Adjudication of Juvenile Delinquency To Be a “Prior Conviction” for the Purpose of Sentence Enhancement at a Subsequent Criminal Proceeding—United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002), 116 Harv. L. Rev. 705, 712 (2002).
¶71 Others also favor the Tighe approach. E.g., Jeremy W. Hochberg, Note, Should Juvenile Adjudications Count as Prior Convictions for Apprendi Purposes?, 45 Wm. & Mary L. Rev. 1159 (2004) (concluding that the United States Supreme Court should adopt the Tighe approach of a blanket ban on counting juvenile adjudications as prior convictions based on the fact that juvenile adjudications are fundamentally different from adult convictions in purpose *288and procedure); Brian P. Thill, Comment, Prior “Convictions” Under Apprendi: Why Juvenile Adjudications May Not Be Used to Increase an Offender’s Sentence Exposure if They Have Not First Been Proven to a Jury Beyond a Reasonable Doubt, 87 Marq. L. Rev. 573, 601 (2004) (“[i]n light of the Supreme Court’s holding in Apprendi and the potentially devastating effects to one of the fundamental liberties afforded to the people of the United States under the Constitution, courts should heed the Supreme Court’s warning and continue to view the [prior conviction] exception created in Almendarez-Torres as a narrow one”); Nicole M. Romine, Note, A Compromised Solution: Balancing the Constitutional Consequences and the Practical Benefits of Using Juvenile Adjudications for Sentence Enhancement Purposes, 45 Washburn L.J. 113, 133 (2005) (concluding that the current use of juvenile adjudications to enhance a criminal sentence is unconstitutional and proposing that states should pass statutes permitting use of “qualified] juvenile adjudication[s],” i.e., adjudications following a juvenile adjudication where the juvenile had a jury trial and the right to counsel; “[b]y giving juveniles the same procedural protections afforded adults, such legislation would remove the constitutional concerns of using juvenile adjudications for sentence enhancement,” and this course would “also benefit! ] society by punishing continued criminality and protecting the public”).
¶72 In sum, the reason for the prior conviction exception to the Apprendi rule is that the prior convictions themselves were accompanied by due process safeguards, including, most notably, the right to have a jury determine the underlying facts beyond a reasonable doubt. There is no substitute for the right to trial by jury. Since juveniles do not have the right to a jury in a juvenile adjudication, I would hold that their adjudications do not correspond to criminal convictions for purposes of the prior conviction exception to Apprendi’s rule.
¶73 The majority also concludes that prosecutorial misconduct does not require reversal. I disagree.
*289¶74 The first two claimed instances of misconduct involve violations of the trial court’s pretrial rulings excluding evidence. As to these claims, Weber’s counsel did not object at trial. I agree with the majority that the defendant should have an obligation to notify the trial court of the violation so that corrective action can be taken, if possible. However, I would not impose a heavy burden on the defendant with respect to preservation of such error. The defendant has, after all, already prevailed on the pretrial motion and “should be entitled to rely on that ruling without again raising objections” to admissibility of the evidence “during trial.” State v. Koloske, 100 Wn.2d 889, 896, 676 P.2d 456 (1984), overruled on other grounds by State v. Brown, 113 Wn.2d 520, 782 P.2d 1013 (1989). Accordingly, the court should engage in every favorable inference in favor of the defendant when deciding whether the failure to object should preclude review of erroneous admission of evidence that was ruled inadmissible in a pretrial order.
¶75 Defying a pretrial ruling excluding testimony by Detective George Alvarez that he had previously met Weber during a criminal investigation of Weber’s brother, the prosecutor asked questions that were bound to elicit testimony forbidden by the pretrial ruling. In particular, the open-ended “explain why” question asked after Detective Alvarez was asked whether the name Charles Weber meant anything to him, and he had answered “yes,” was bound to lead to the circumstances associated with his criminal investigation of the defendant’s brother — because those where the circumstances under which the detective knew the name. It strains credulity to think that the prosecution would not have foreseen where this questioning would lead and for the majority to dismiss it on the basis that the detective could have answered the question in another way. The State correctly concedes that error occurred. The majority incorrectly concludes the prosecuting attorney did not deliberately disregard the pretrial order.
¶76 The second claim of misconduct concerns the trial court’s ruling excluding any reference to gang-related mem*290bership or expert testimony about gangs. The prosecuting attorney asked whether Detective Alvarez had ever observed, when he was a patrol officer, anyone besides the defendant with a “206” tattooed on the back of his neck, and the detective responded “no.” The question was altered to cover the time Alvarez acted as a special enforcement agent investigating gangs, and Detective Alvarez responded that he had not seen “another individual” with such a tattoo “of that size.” Later questions were asked about whether Weber’s brother had a “206” tattooed on his neck.
¶77 Again, the State correctly concedes that the trial court’s pretrial order was violated. The majority incorrectly concludes that there is no clear indication that the prosecuting attorney deliberately disregarded the pretrial order. As the Court of Appeals said, the violation is clear and inexcusable. The inference from this testimony was that the detective had seen others with a smaller version of the tattoo while he was investigating gangs and that Weber, who has such a tattoo, is a member of a gang. The questioning was in direct violation of the trial court’s pretrial ruling, and it is inconceivable that the State could have pursued this line of inquiry without realizing it would lead to inferences about Weber and his brother being members of a gang. The State deliberately disregarded the trial court’s ruling, and it is quite surprising that the majority concludes otherwise.
¶78 Finally, in closing argument, the prosecuting attorney responded to defense counsel’s claim of insufficient evidence for a conviction by arguing that the State has successfully prosecuted other cases, including sex crimes and child molestation, where there have been no witnesses or direct evidence. Weber’s counsel objected to this argument, and the court, after initially overruling the objection, then advised the prosecuting attorney to move on.
¶79 The majority accepts the proposition that this argument was in response to defense counsel’s argument. Perhaps. But the defense is entitled to claim there is insufficient evidence for a conviction. The State is not entitled to *291inflame the jury and encourage it to convict regardless of the evidence and the requirement of proof beyond a reasonable doubt.
¶80 I would conclude as to each instance of claimed misconduct that error occurred and that the error is properly before the court. The sole remaining question is whether the error is so prejudicial as to require reversal. Whether or not the prejudicial effect of each of these errors independently requires reversal, the cumulative effect is such that reversal is required. See State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984) (court finds that cumulative error requires a new trial); State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000) (statement of cumulative error rule — cumulative error may warrant reversal, even if each error alone would not constitute reversible error).
¶81 These errors left the jury with the impression that Weber was a dangerous career criminal engaged in terrible crimes (evidence relating him to his brother and a previous criminal investigation; the impermissible evidence implying that Weber was involved in gangs; and the closing argument comparing this case and the lack of direct evidence with cases involving sex crimes and child molestation) who should and could be convicted despite a lack of evidence and in spite of the beyond-a-reasonable-doubt standard (the improper closing argument).
¶82 Based on prosecutorial misconduct, this case should be reversed and remanded for a new trial.
C. Johnson, Sanders, and Chambers, JJ., concur with Madsen, J.
The defendant in Almendarez-Torres argued that the fact of his prior conviction, used to increase his punishment, was an element of the offense that had to be set out in the indictment. The Court rejected the argument.
The majority incorrectly reads Jones. See majority at 260-61. When read in context, the word “possible” refers to “the possible constitutional distinctiveness” of recidivism from “other facts that might extend the range of possible sentencing.” Jones, 526 U.S. at 249. The Court did not imply that any constitutional safeguards other than fair notice, proof beyond a reasonable doubt, or the right to jury trial would be sufficient for a prior conviction to come within the “prior conviction” exception to the Apprendi rule, contrary to the majority’s conclusion.