Opinion
No. 65253-2-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-1-07279-1, Carol A. Schapira, J., entered April 12, 2010.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
Tony Hernandez appeals the sentence enhancements imposed following his convictions for possession and delivery of a controlled substance. Citing State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), he contends, and the State does not dispute, that the instructions erroneously required unanimity before the jury could answer "no" on the enhancement verdict form. The State argues, however, that this claim cannot be raised for the first time on appeal. We recently held otherwise in State v. Ryan, No. 64726-1 (Wash. Ct. App. April 4, 2011). The State also argues that Bashaw is contrary to legislative intent, but it acknowledges that we are bound by the Supreme Court's decision in that case. See State v. Williams, 93 Wn. App. 340, 344, 968 P .2d 26 (1998). Accordingly, because the court's instructions were erroneous under Bashaw, and because there is no contention that the error was harmless, we vacate the enhancements and remand for further proceedings consistent with this opinion.
Reversed in part and remanded for further proceedings.