Chance gave no other reason to explain his repeated contacts with Gilbert and none appears in the record. The court did not err in finding that Chance was acting in retaliation for Gilbert's actions in his official capacity as a prosecutor. The finding satisfies the first prong of the Garza test. There was not sufficient evidence to support the finding of deliberate cruelty . We hold that the record does not support a finding of deliberate cruelty sufficient to support the imposition of an exceptional sentence.
Retaliation justifies a departure from the standard range as a matter of law .
First, retaliation is not a factor that the legislature considered in establishing the standard sentence range for assault, so the trial court may consider it in determining whether to depart from the standard sentence range. Second, retaliation against an officer of the court is sufficiently substantial and compelling to justify an exceptional sentence. Retaliation is not a statutory aggravating factor under the Sentencing Reform Act, RCW 9.94A . Where circumstances require additional protection for the public, however, courts have applied other nonstatutory and compelling reasons as justification for imposing an exceptional sentence. The legislature recognizes gang retaliation as a statutory aggravating factor in aggravated murder cases.