State v. Nunez, 160 Wash. App. 150

Nunez was charged March 10, 2009 with delivery and possession of a controlled substance, later amended to include a 1,000-foot school zone enhancement.
Speedy trial deadlines were challenged as the trial was repeatedly continued and ultimately held after several continuances.
On July 1, 2009, a jury found Nunez guilty of the charged offenses and accompanying special verdicts; the court dismissed the special verdict on count 1 at sentencing.
The school-zone enhancement was imposed based on a jury instruction requiring unanimity to convict or acquit regarding the aggravating factor.
After Bashaw (2010) addressed unanimous verdict requirements for aggravating factors, Nunez moved to supplement, arguing the instructional error affected the enhancement.
The court held the instructional error was not manifest constitutional error and affirmed judgment and sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the instructional unanimity error is manifest constitutional error	Nunez argues Bashaw makes the error manifest.	Nunez contends the unanimity instruction violated constitutional rights.	Not manifest constitutional error; affirmed.
Whether the instructional error warrants first-time review under RAP 2.5(a)(3)	Error should be reviewable due to constitutional concern per Bashaw.	Failure to object precludes review under RAP 2.5(a); not manifest constitutional error.	Not reviewable on appeal; not manifest constitutional error.
Whether alleged speedy-trial violations require dismissal under CrR 3.3	Delays violated CrR 3.3 and prejudiced rights.	Continuances justified; no reversible error.	No reversible CrR 3.3 error established.

State v. Bashaw, 169 Wn.2d 133 (2010) (unanimity not constitutionally required to impose or reject an aggravating factor; harmless error analysis)
Goldberg v. State, 149 Wn.2d 888 (2003) (right to jury verdict does not mandate unanimous decision on every issue)
State v. Labanowski, 117 Wn.2d 405 (1991) (acquittal-first vs. unable-to-agree instructions; not constitutional per se)
State v. O’Hara, 167 Wn.2d 91 (2009) (instructional error not automatically constitutional; defines manifest error analysis)
State v. Davis, 141 Wn.2d 798 (2000) (Davis clarifies when instructional errors may be raised on appeal)
State v. Deal, 128 Wn.2d 693 (1996) (constitutional grounds limited; evidence-based challenges)
State v. McFarland, 127 Wn.2d 322 (1995) (harmless error framework for instructional issues)