(concurring) — I concur with the majority insofar as it determines that RCW 13.04.030(l)(e)(iv) survives a facial challenge to its constitutionality. I write separately only to express my concern that the statute could be applied in a way that is violative of equal protection or due process guaranties, or both.
Fundamentally, persons who are similarly situated must receive like treatment from the government. State v. Phelan, 100 Wn.2d 508, 512, 671 P.2d 1212 (1983). Stated another way, when members of the same class are accorded different treatment under a statute, there is an equal protection violation unless there is a rational basis for the disparate treatment.14 Forbes v. City of Seattle, 113 Wn.2d 929, 943, 785 P.2d 431 (1990). Conversely, "[wjhere *577persons of different classes are treated differently, there is no equal protection violation.” Forbes, 113 Wn.2d at 943.
In determining if there is a danger of unequal application of the statute we are reviewing in this case, it is important to define the class that should receive equal treatment under it. If the class is viewed as 16- or 17-year-old juveniles who are alleged to have committed serious violent offenses, there is no potential for unequal treatment because all within that class are treated the same —they will be charged and dealt with in adult court. On the other hand, if the class is viewed as all 16- or 17-year-old juveniles convicted of nonenumerated offenses,15 it can readily be seen that application of the statute may result in disparate treatment of some members of the class.
A hypothetical scenario helps make the point that, under the pertinent statutory scheme, a 16- or 17-year-old juvenile could receive treatment that is substantially different than the treatment afforded a similarly situated juvenile of that age and for reasons that may not be rational. In the example, two 17-year-old juveniles, A and B, are arrested as accomplices to the same assault. If the prosecutor should choose to charge A with the offense of second degree assault for his conduct, the charge would have to be leveled in juvenile court unless the prosecutor should seek an order remanding him to adult court. Upon conviction, A would remain under the jurisdiction of the juvenile court. On the other hand, if the prosecutor should choose, for whatever reason, to charge B with first degree assault for his part in the criminal enterprise, B would be charged in superior court because first degree assault is a serious violent offense. RCW 13.04.030(l)(e)(iv)(A); former ROW 9.94A.030(29)(a) (1994).
In our hypothetical case, if B is found guilty, based on a guilty plea or a finding of guilt of the lesser degree of the *578charged crime, second degree assault, that defendant would be convicted of the same offense as the first offender, A. However, the penalty meted out to B would be significantly greater than that received by A, who was originally charged with second degree assault. This inequity would occur because B was found guilty in superior court. Furthermore, B, unlike his counterpart, A, would suffer the increased stigma that is associated with a conviction for an adult crime and would not have access to the rehabilitative benefits that are available to an offender in juvenile court. There is, on the surface at least, no rational basis for distinguishing between the two juveniles in this hypothetical case, and yet the treatment afforded to one of them, which flows entirely from the prosecutor’s charging decision made pursuant to RCW 13.04.030(l)(e)(iv), is substantially different.
I must concede that there might be a rational basis for B to be in adult court. Indeed, many juveniles who are originally charged with an offense in juvenile court are transferred to adult court pursuant to the decline process provided in RCW 13.40.110. In such cases, though, the juvenile court may not transfer the juvenile to superior court without conducting a hearing at which it is to consider all of the factors set forth by the United States Supreme Court in Kent v. United States, 383 U.S. 541, 566-67, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966).16
The majority suggests that protection against inequita*579ble application of the statute is provided by the constitutional restraints on the prosecutor’s charging decision.17 While in the abstract such restraints exist, there is no provision in this statute for a judicial proceeding where the prosecutor’s discretion is tested. Although I will presume good faith on the part of the charging authority, that is not sufficient to protect a child’s constitutional rights. Hughes v. State, 653 A.2d 241 (Del. Supr. 1994).
The inequity I have focused on here could be easily cured by the Legislature. Indeed, one state, Georgia, has done so by giving the superior court of that state statutory authority to transfer to juvenile court any juvenile who initially fell under the superior court’s jurisdiction by being charged with an enumerated offense, if the juvenile is subsequently convicted of a lesser included offense that was not an enumerated offense. Ga. Code Ann. 15-11-5(b)(2)(A), (D) (Michie 1994).
I recognize that a case with facts like those set forth in my hypothetical example may never arise. Perhaps all juvenile offenders who are charged with an enumerated offense will, like the defendants here, be found guilty of the charged offense or will be acquitted. In either event, there would be no equal protection or due process issue. I find that prospect unlikely, however, and suggest that we may *580soon be confronted with the issue in a case in which a 16- or 17-year-old finds himself or herself in superior court convicted of a nonenumerated offense without having been afforded a hearing to determine if adult court is the appropriate setting for that juvenile.
Sanders, J., concurs with Alexander, J.
Governmental action that implicates a person’s liberty interest, but does not otherwise involve a suspect or semisuspect class, will be subject to the rational basis test. State v. Manussier, 129 Wn.2d 652, 673, 921 P.2d 473 (1996); State v. Coria, 120 Wn.2d 156, 171, 839 P.2d 890 (1992).
RCW 13.04.030 subjects 16- and 17-year-old juveniles to the original jurisdiction of superior court if they are alleged to have committed one of the crimes listed under subsection (l)(e)(iv)(A) or (B) (the "enumerated offenses”). Juveniles are subject to the original jurisdiction of juvenile court if they allegedly committed any other offense (the "nonenumerated offenses”).
The eight determinative factors are:
"1. The seriousness of the alleged oifense to the community and whether the protection of the community requires waiver.
"2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
"3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.
"4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may he expected to return an indictment (to be determined by consultation with the United States Attorney).
"5. The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults who will be charged with a crime in the U.S. District Court for the District of Columbia.
*579"6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
"7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.
"8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.” Kent, 383 U.S. at 566-67.
The majority also suggests that the defendant’s ability to challenge the sufficiency of the State’s evidence to establish a prima facie case for all of the elements of the charged crime pursuant to State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986), effectively cures the problem. In ruling on such motions, however, the trial court looks at the evidence in the light most favorable to the State. Knapstad, 107 Wn.2d at 353. It is still possible, therefore, for a prosecutor to file a first degree assault charge, prevail on a Knapstad motion, and obtain a conviction of the defendant for second degree assault.