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  IN THE SUPREME COURT OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                               )
                                                    )
                Respondent,                         )
                                                    )
        v.                                          )                  No. 85789-0
                                                    )
 ENRIQUE GUZMAN NUÑEZ,                              )       (consolidated with No. 85947-7)
                                                    )
                Petitioner.                         )                    En Banc
 -------------------------------------------------------- )
                                                    )
 STATE OF WASHINGTON,                               )               Filed June 7, 2012
                                                    )
               Petitioner,                          )
                                                    )
        v.                                          )
                                                    )
 GEORGE W. RYAN,                                    )
                                                    )
               Respondent.

       WIGGINS, J.  --  The Sixth Amendment to the United States Constitution requires 

that a jury must unanimously  find          beyond a reasonable doubt any              aggravating 

circumstances that increase a defendant's sentence.          In Washington, a jury uses special 

verdict forms to find these aggravating circumstances.  In State v. Bashaw, 169 Wn.2d  

No. 85789-0

133, 234 P.3d 195 (2010), we held in part that a jury may reject a special finding on an 

aggravating circumstance       even if the jurors are not unanimous.1               In these two 

consolidated cases, the trial court instructed the jury that it must be unanimous to either 

accept or reject the aggravating circumstances,  contrary to our decision in Bashaw.  

However, the  nonunanimity rule adopted in Bashaw was based on an incorrect rule 

announced in State v. Goldberg, 149 Wn.2d 888, 894, 72 P.3d 1083 (2003).  This rule

conflicts with statutory authority, causes needless confusion, does not serve the policies 

that gave rise to it, and frustrates the purpose of jury unanimity.  Accordingly, we take this 

opportunity to reconsider this portion of our holding in Bashaw               and   hold that the 

nonunanimity rule cannot stand.  We affirm the Court of Appeals in upholding Nuñez's 

conviction and sentence, reverse the Court of Appeals and reinstate Ryan's exceptional 

sentence, and remand both cases for proceedings consistent with this opinion.

                                             FACTS

       State v. Guzman Nuñez

       Enrique Nuñez2       was convicted of delivery of a controlled substance and 

possession of a controlled substance.  The State included a special allegation on the 

1 The nonunanimity rule was actually a relatively minor part of our holding in Bashaw. See 169 
Wn.2d at 145-48.  Our primary holding in Bashaw             concerned the showing of reliability 
necessary for admission of results of a measuring device.  See 169 Wn.2d at 137-45.  We held 
that the trial court abused its discretion by admitting the results of a rolling wheel measuring 
device with "no showing whatsoever that those results were accurate," but that the error was 
harmless on two of three counts.  Id. at 143.  That holding is not affected by this opinion.

2 The case caption lists this defendant's name as Guzman Nuñez.  We refer to this defendant 
as Nuñez alone because this is consistent with his briefing and documents in the record in this 
matter.

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No. 85789-0

aggravating circumstance that each crime took place within 1,000 feet of a school bus 

stop.  The jury was given a special verdict form for each count regarding the school bus 

stop allegation.  Instruction 15 stated that the jury must be unanimous to answer the 

special verdict forms:  

       Because this is a criminal case, all twelve of you must agree in order to 
       answer the special verdict forms.  In order to answer the special verdict 
       forms "yes," you must unanimously be satisfied beyond a reasonable doubt 
       that "yes" is the correct answer.  If you unanimously have a reasonable 
       doubt as to this question, you must answer, "no."

Nuñez Clerk's Papers (Nuñez CP) at 30.  Nuñez did not object to the form of Instruction 

15.

       The jury unanimously answered both special verdict forms "yes."              At sentencing, 

the trial court imposed one 24-month sentence enhancement for the possession count.  

Nuñez appealed his conviction.  After we decided Bashaw, 169 Wn.2d 133, the Court of 

Appeals, Division Three held that Nuñez was barred from raising the Bashaw error for 

the first time on appeal.  State v. Guzman Nuñez, 160 Wn. App. 150, 153, 165, 248 P.3d 

103 (2011).

       State v. Ryan

       George Ryan was convicted of second degree assault and felony harassment 

after he threatened to kill his ex-girlfriend with a knife.  The State alleged two aggravating 

circumstances: (1) the offenses involved domestic violence with a pattern of abuse and 

(2) that Ryan committed felony harassment while armed with a deadly weapon.  The trial 

court provided special verdict forms for the aggravating circumstances and gave a jury 

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instruction identical to the instruction in Nuñez, quoted supra.  Ryan did not object to this 

instruction.

       The jury answered "yes" to the special verdict forms and the trial court imposed 

exceptional sentences on both counts.  Division One affirmed Ryan's convictions but 

vacated the exceptional sentence because the trial court failed to give a nonunanimity

instruction under Bashaw. State v. Ryan, 160 Wn. App. 944, 950, 252 P.3d 895 (2011).  

We accepted review and consolidated the two cases.  172 Wn.2d 1004, 258 P.3d 676 

(2011).

                                             Analysis

       "'Fixing  of penalties or punishments for criminal offenses is a legislative 

function . . . .'"  State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d 719, 718 P.2d 796

(1986)  (quoting  State v. Mulcare, 189 Wash. 625, 628, 66 P.2d 360 (1937)).  Our 

legislature has enacted factors that can increase a sentence beyond the standard range 

in a number of different statutes.  Some can be found in the Sentencing Reform Act of 

1981   (SRA),   chapter 9.94A RCW.  E.g.,           RCW     9.94A.535(3) (listing  a variety of 

aggravating circumstances to be considered by a jury); RCW 9.94A.533(3) (possession 

of a firearm during commission of the crime).  Others are found in the provisions for 

criminal procedure.  RCW 10.95.020 (aggravating circumstances supporting a conviction 

for aggravated first degree murder).  Still others are found outside the criminal code 

entirely.  RCW 69.50.435(1)(c) (committing a drug crime within 1,000 feet of a school 

bus stop).

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No. 85789-0

       Regardless of the statutory source of the aggravator, the jury must unanimously

find beyond a reasonable doubt any aggravating circumstance that increases the penalty 

for a crime.  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, 313-14, 124 S. Ct. 2531, 159 L. Ed. 

2d 403 (2004).  In Bashaw, we held that unanimity was not required to reject an 

aggravating circumstance.  169 Wn.2d at 146.

   I.  Bashaw's reliance on Goldberg

       In Bashaw, we based our adoption of the nonunanimity rule entirely on Goldberg, 

149 Wn.2d 888.  We now perceive               problems with Goldberg's        nonunanimity     rule, 

conclude  that the rule was erroneously applied in Goldberg,                 and  reexamine our 

application of the rule in Bashaw. 

       In  Goldberg, the jury considered an aggravating circumstance under RCW 

10.95.020, that would allow a sentence of life in prison without the possibility of release 

or parole.  149 Wn.2d at 893.  The jury was instructed that it must be unanimous to find 

an aggravating circumstance and that if it had a reasonable doubt it must reject the 

aggravator by answering the special verdict form "no."  Id. The jury answered "no" on the 

special verdict form, but a poll of the jury revealed that only three jurors had voted "no."  

Id. at 891.  The trial court instructed the jury to continue deliberations to attempt to reach 

a unanimous verdict.  Id.     We held that the trial court erred by sending the jury back to 

continue deliberating on the aggravating factors because unanimity is not required to 

reject an aggravating circumstance.  Id. at 894.

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No. 85789-0

       In  Bashaw, we extended that rule to the school bus zone aggravating 

circumstance -- identical to the aggravator before us now in Nuñez.  169 Wn.2d at 145.  

We stated that "[a] nonunanimous jury decision is a final determination that the State has 

not proved the special finding beyond a reasonable doubt"                    and held that the 

nonunanimity rule served policy considerations of judicial economy and finality.  Id. at 

146-47.  We based our decision on common law rather than constitutional grounds.  Id.

at 146 n.7.

       In these consolidated cases, the State asks that we revisit Goldberg and Bashaw

and reject the nonunanimity rule.  We require "'a clear showing that an established rule is 

incorrect and harmful before it is abandoned.'"  Riehl v. Foodmaker, Inc., 152 Wn.2d 

138, 147, 94 P.3d 930 (2004) (quoting In re Rights to Waters of Stranger Creek, 77 

Wn.2d 649, 653, 466 P.2d 508 (1970)).

       We now conclude that Goldberg's nonunanimity rule is incorrect for two reasons: 

(1) the authority on which it relies does not support it and (2) it conflicts with our 

precedent.  

       First, Goldberg relies on CrR 6.16(a)(3) to support the proposition that the trial 

court  cannot instruct the jury to continue deliberations when it cannot unanimously 

answer yes or no to a special finding for an aggravating circumstance.  149 Wn.2d at 
894.  But CrR 6.16(a)(3)3 states:

       When a verdict or special finding is returned and before it is recorded, the 
       jury shall be polled . . . .  If at the conclusion of the poll, all of the jurors do 

3 Although CrR 6.16 has been amended since we decided Goldberg, the relevant language 
remains the same. 

                                                 6 

No. 85789-0

       not concur, the jury may be directed to retire for further deliberations . . . .

(Emphasis added.)      Nothing in the rule states a different standard for special findings on 

aggravating circumstances.  Therefore, the rule does not support our holding in 

Goldberg.

       Second, the nonunanimity rule applied in Goldberg conflicts with our precedent.  In 

State v. Brett,  we approved jury instructions that required             unanimity to reject an 

aggravating factor for aggravated first degree murder.  126 Wn.2d 136, 173-74, 892 

P.2d 29 (1995).  In Brett, as in Goldberg, the defendant was charged with aggravated 

first degree murder under RCW 10.95.020.             Brett, 126 Wn.2d at 154.  The jury was 

instructed to answer a special verdict form regarding aggravating circumstances only if it 

found that the defendant had committed first degree murder.  Id. at 173.  In that instance, 

the jury was further instructed:

       "The State has the burden to prove beyond a reasonable doubt, as 
       previously defined, one or more of the above-listed aggravating 
       circumstances. . . .You must unanimously agree upon which, if any, of the 
       aggravating circumstances set forth before has been proved beyond a 
       reasonable doubt. You will be provided with a Special Verdict Form "B" for 
       each aggravating circumstance in which you answer "yes" or "no" according 
       to the decision you reach.
       "If, after fully and fairly considering all of the evidence or lack of evidence 
       you are not able to reach a unanimous decision as to any element of any 
       one of the aggravating circumstances, do not fill in the blank for that 
       alternative."

Id. (quoting instruction).  Brett argued that this instruction jeopardized the requirement of 

jury unanimity on each alternative aggravating circumstance.  Id. at 172.  We held that 

there was no error because the jury was told not to fill in the blank if it could not agree.  

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No. 85789-0

Id. at 173.  Thus our statement in Goldberg that unanimity is not required to answer "no" 

on a special verdict form for an aggravating circumstance under RCW                     10.95.020 

conflicted with existing precedent. 

       Accordingly, we hold that Goldberg's adoption of the nonunanimity rule for special 

verdicts in aggravated murder cases was incorrect.

   II. The nonunanimity rule, Ryan, and Nuñez

       In  Bashaw, we relied solely on Goldberg for the rule that a jury need not be 

unanimous to reject an aggravating circumstance.   The aggravating circumstance in 

Bashaw arose under the Uniform Controlled Substances Act, chapter 69.50 RCW, rather 

than the list of aggravating circumstances in the SRA.  Consequently, we did not have 

occasion in Bashaw        to consider how the nonunanimity           rule would apply to SRA 

aggravating circumstances.

       The SRA requires unanimity for any verdict on the aggravating circumstances 

listed in the act, providing:

       The facts supporting aggravating circumstances shall be proved to a jury 
       beyond a reasonable doubt. The jury's verdict on the aggravating factor 
       must be unanimous, and by special interrogatory. If a jury is waived, proof 
       shall be to the court beyond a reasonable doubt, unless the defendant 
       stipulates to the aggravating facts.

RCW 9.94A.537(3).  This provision does not distinguish between a yes or no verdict on 

the aggravating factor in the unanimity requirement.  The State argues that the legislature 

intended complete unanimity to impose or reject an aggravator.  We agree.  Had the 

legislature  intended to allow a jury to reject an aggravating circumstance by a 

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No. 85789-0

nonunanimous verdict, it could have made the distinction.  Because the legislature has 

authority to determine sentences, see Ammons, 105 Wn.2d at 179-80, the nonunanimity

rule cannot apply to aggravating circumstances found in the SRA.  The aggravating 

circumstance in Ryan arose under the SRA.  Accordingly, the nonunanimity rule cannot 

apply in Ryan's case.

       Turning from Ryan to Nuñez, the aggravating circumstance in Nuñez is identical to 

the aggravating circumstance in Bashaw.         The nonunanimity rule was incorrectly applied 

to aggravated murder in Goldberg and cannot be applied to aggravating circumstances 

under the SRA.        It would create unnecessary confusion to apply the rule to the 

aggravating circumstance in Bashaw and Nuñez.  

       The legislature said nothing about jury unanimity in the statute that provides for the 

school bus zone enhancement at issue in Bashaw and here in Nuñez.  See RCW 

69.50.435.  Nonetheless, it makes little sense to require unanimity to reject a firearm 

aggravator or an aggravating circumstance for aggravated first degree murder, but not to 

reject the school bus zone sentence enhancement -- especially  if  both types of 

aggravating circumstances were to arise in the same case.  Accordingly, we hold that the

nonunanimity rule from Goldberg does not apply to the aggravating circumstance in 

Bashaw and by extension, Nuñez.

   III. Harmful consequences of extending the nonunanimity rule

       The nonunanimity rule is harmful because it creates unnecessary confusion for 

trial courts and juries because it does not serve the policy considerations that gave rise 

                                                 9 

No. 85789-0

to it and because it undermines the purposes of jury unanimity.

   a.  Adherence to the nonunanimity rule causes confusion

       A nonunanimity instruction would be confusing in any criminal  case because it 

conflicts with the general instruction requiring unanimity.  Trial courts almost invariably 

give a basic concluding instruction requiring unanimity: "Because this is a criminal case, 

each of you must agree to return a verdict."  11A Washington Practice: Washington 

Pattern Jury Instructions: Criminal 151.00 (3d ed. 2008) (WPIC).  Before  Bashaw,  a

pattern instruction also required unanimity to answer the aggravating circumstances 

special verdict.  11A WPIC 160.00.  This is consistent with the more general 11A WPIC 

151.00 and emphasizes the importance of jury unanimity in criminal cases.  

       However, in 2011, the pattern instruction was amended to reflect our holding in 

Bashaw:

       In order to answer the special verdict form[s] "yes," you must unanimously 
       be satisfied beyond a reasonable doubt that "yes" is the correct answer.  If 
       you unanimously agree that the answer to the question is "no," or if after full 
       and fair consideration of the evidence you are not in agreement as to the 
       answer, you must fill in the blank with the answer "no."

11A WPIC 160.00 (Supp. 2011).  It is potentially confusing for a jury to be told in general

that it must be unanimous to render a verdict but that it must answer no if it cannot agree

on a special verdict form, despite not being unanimous.  

   b.  The nonunanimity rule does not serve the policies for which it was adopted

       In  Bashaw, we adopted the nonunanimity              rule in order to serve the "core 

concerns" of judicial economy and finality.  See 169 Wn.2d at 146 (noting (1) the "heavy 

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No. 85789-0

toll on both society and defendants" caused by second trial, even if limited to the 

aggravating circumstances and (2) the defendant's valued right to have the charges 

resolved by a particular tribunal). The rule would only serve judicial economy and finality

if it prevented retrial on the aggravating circumstances alone.  But the rule will not

prevent retrial on many aggravating circumstances because we have said that double 

jeopardy does not apply to aggravating circumstances outside the death penalty context.  

       Both the United States and Washington Constitutions prohibit successive
prosecutions for an offense on which the defendant has been acquitted.4 But proving the 

elements of an offense is different from proving an aggravating circumstance.   The 

Supreme Court has held that the prosecution's admitted failure to prove an aggravating

circumstance beyond a reasonable doubt does not preclude retrial of that allegation at a 
new sentencing proceeding, except in the context of death penalty cases.5  Accordingly, 

whether a jury unanimously rejected an aggravating circumstance has no bearing on 

whether the factor may be retried outside of the death penalty context. The nonunanimity

rule would therefore not preclude retrial of a non-death penalty aggravator.

4 U.S. Const. amend. V; Wash. Const. art. I, § 9; see Bullington v. Missouri, 451 U.S. 430, 437, 
101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981) ("It is well established that the Double Jeopardy 
Clause forbids the retrial of a defendant who has been acquitted of the crime charged."). 
Washington's double jeopardy clause is coextensive with the federal double jeopardy clause,
and we follow the United States Supreme Court's interpretation of the Fifth Amendment.  State 
v. Eggleston, 164 Wn.2d 61, 70, 187 P.3d 233 (2008).

5 Monge v. California, 524 U.S. 721, 730, 734, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998) (citing 
Bullington, 451 U.S. 430, as a "narrow exception" in the death penalty context to the general 
rule that determinations relating to sentencing do not give rise to double jeopardy concerns).  
Likewise, in Eggleston, we held that double jeopardy did not prevent the defendant's retrial on 
an aggravating factor because he was not facing the death penalty in his third trial.  164 Wn.2d 
at 71.

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No. 85789-0

   c.  The nonunanimity rule subverts the jury's duty to deliberate carefully and consider 
       one another's opinions.

       A rule that allows a jury to give a definite answer on a special verdict form when 

the jurors are not in agreement frustrates one of the core purposes of jury unanimity, 

which is to promote the jurors' full discussion and well-considered determinations before 

returning a verdict.  See Jones v. United States, 527 U.S. 373, 382, 119 S. Ct. 2090, 

144 L. Ed. 2d 370 (1990); State v. Cross, 156 Wn.2d 580, 616, 132 P.3d 80 (2006) ("We 

want juries to deliberate, not merely vote their initial impulses and move on.").        Requiring 

that a jury give a definitive "no" answer when its members cannot agree frustrates this 

purpose.  A "no" answer on a special verdict form would not necessarily reflect the jury's 

considered judgment but could very well be the result of an unwillingness to fully explore 

the reasons for any disagreement.

       Because the nonunanimity          rule  is both incorrect and harmful, we overrule 

Goldberg and the portion of Bashaw adopting the nonunanimity rule for aggravating 

circumstances.  See Riehl, 152 Wn.2d at 147. We are not called upon in these cases to 

develop a rule that would better serve  both  the purposes of jury unanimity and the

policies of judicial economy and finality.  We do note, however, that the instruction given 

in Brett, requiring a jury to leave a special verdict form blank if it could not agree, is a 

more accurate statement of the State's burden and better serves the purposes of jury 

unanimity.  See 126 Wn.2d 173.  For these reasons, we endorse the Brett instruction 

going forward.

                                         CONCLUSION

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No. 85789-0

       The "'very object of the jury system is to secure unanimity by a comparison of 

views, and by arguments among the jurors themselves.'"   Jones, 527 U.S. at 382 

(quoting Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528 (1896)).  

Not only does the jury instruction rule from Bashaw ignore this objective, it conflicts with 

other authority, causes unnecessary confusion, does not fulfill the policies that prompted 

the rule, and undermines the purpose of jury unanimity.  Therefore, the nonunanimity rule 

is overruled.  The jury instructions challenged by Nuñez and Ryan were correct.  

Accordingly, we affirm Nuñez's sentence and reverse the Court of Appeals in Ryan and 

remand both cases for further proceedings consistent with this opinion.

                                                13 

No. 85789-0

AUTHOR:
        Justice Charles K. Wiggins

WE CONCUR:
        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers

        Justice Susan Owens                              Justice Steven C. González

        Justice Mary E. Fairhurst

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