Opinion
63929-3-I
10-22-2012
STATE OF WASHINGTON, Respondent, v. DAVID E. LANGE, Appellant.
UNPUBLISHED OPINION
ON REMAND
Lau, J.
In our first opinion on this matter, we affirmed David Lange's second degree assault conviction. We vacated the exceptional sentence and remanded for resentencing, however, because the trial court instructed Lange's jury it must be unanimous to answer whether the State proved the facts necessary to support the exceptional sentence based on the aggravating factor. Under State v. Bashaw, 169 Wn.2d 133, 145, 234 P.3d 195 (2010), such an instruction was error.
In State v. Nunez, 174 Wn.2d 708, 285 P.3d 21 (2012), however, the Supreme Court overruled Bashaw and expressly approved the instruction given here. The Supreme Court granted the State's petition for review only on the issue of the exceptional sentence and remanded to this court for reconsideration in light of Nunez.
In light of that decision, we now affirm L ange's sentence.