(dissenting) — RCW 69.50.401(a)(l)(iii) criminalizes “possess [ion] with intent to manufacture” illicit drugs. The issue here is whether simultaneous grow operations at different locations are a single “unit of prosecution” or whether multiple, simultaneous, grow operations support multiple, separate, criminal prosecutions and penalties. I agree with Court of Appeals Judge Becker’s *178dissenting opinion that “intent to manufacture” cannot be subdivided by location, volume, or stage of production. Rather, “intent to manufacture” is a single, legislatively defined, unit of prosecution without regard to the manner, extent, or location of that manufacture.
The purpose of the Fifth Amendment to the United States Constitution and its Washington counterpart, article I, section 9, is to guarantee no citizen will twice be placed in jeopardy for the same offense.3 In State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998), we observed, “[o]ne aspect of double jeopardy protects a defendant from being punished multiple times for the same offense” (citing State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995); State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995)). Additionally we held where a defendant’s conduct “constitutes just one criminal act, or one ‘unit of prosecution,’ ” multiple convictions for that single criminal act violate double jeopardy. Adel, 136 Wn.2d at 632. Protection of the individual’s right to be free from being twice put in jeopardy for the same offense is fundamental. If the right is diminished for Davis, it is equally diminished for us all.
The first step to define the correct “unit of prosecution” is examination of the statute under which the defendant has been charged or convicted to determine legislative intent.4 Id. at 635.
Davis argues intent is the determining characteristic of that unit of prosecution envisioned by RCW 69.50-.401(a)(l)(iii):
(a) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(1) Any person who violates this subsection with respect to:
*179(iii) any other controlled substance classified in Schedule I, II, or III, is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both[.J
RCW 69.50.401(a)(l)(iii) (emphasis added).
The State contends since each separate intention to deliver is separately punishable, each separate location of manufacture should likewise be considered a separate unit of prosecution in manufacture cases. However this logic ignores that while each act of delivery requires a separate intent, it is impossible to have multiple intents to “manufacture,” at least insofar as that term is legislatively defined as a process. A market analogy best illustrates the inherent difference between delivery and manufacture.
Delivery is, by nature, a finite process. Once goods pass from a buyer to a seller, the transaction is complete. If the seller has yet to dispose of his entire cache of goods, he will undoubtedly seek out a different buyer and begin the process anew.
Manufacturing, however, involves an ongoing course of conduct not necessarily constrained by location. Manufacturing necessarily involves, as the legislature defines it, a “production, preparation, propagation, compounding, conversion, or processing . . ..” RCW 69.50.101(p). In short, it is a process or procedure; and therefore it must be the procedure itself, rather than some aspect of the procedure,5 which constitutes the true unit of prosecution.
Manufacturing levels may of course increase to satisfy an increased demand; but whether the increase is achieved by hiring new employees, or by increasing the productivity of current employees, or by opening a new plant in a different location, the underlying intent to manufacture is the same. A new intent to manufacture is not created simply because *180the quantity or means of production may change. It is the fact of manufacture, regardless of quantity and modality, coupled with criminal intent, by which the legislature has defined the crime—and hence it is that overall intent which must ultimately define the unit of prosecution.
The man who maintains a single production facility intends to manufacture his product just as surely as the man who maintains 50 production facilities. One man may grow a single marijuana plant whereas another grows a thousand. But the statute which prohibits the intention to manufacture holds both men equally culpable of but a single crime. Of course, the result would be different if the statute sought to regulate the number of production facilities. In that instance the man who maintains 50 production facilities is 50 times as culpable as his single facility counterpart. However such distinction is noticeably absent from our statute.
If the legislature intended to make differing locations the “unit of prosecution,” it could easily have done so.6 As Justice Frankfurter observed in Bell v. United States, “When Congress has the will it has no difficulty in expressing it—when it has the will, that is, of defining what it desires to make the unit of prosecution . . . .” 349 U.S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955). Correspondingly, “When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.” Id. Hence where alternative units of prosecution can reasonably be discerned from the same statutory text, it is the broader unit which is preferred so as to minimize the criminal culpability.
Even though the intent to manufacture is inherently different from the intent to deliver, intent to deliver cases can nevertheless inform the analysis of the appropriate unit of prosecution. For example, in Adel this court examined two intent to deliver cases from the appellate courts which failed to properly apply the unit of prosecution *181analysis. In State v. Lopez, 79 Wn. App. 755, 904 P.2d 1179 (1995) the defendant faced multiple convictions under an intent to deliver statute. Lopez, 79 Wn. App. at 760. Lopez had two separate quantities of cocaine under his dominion and control at the time of his arrest, one located on the floor of his car and the other located on his person. Id. at 759. When, in Adel, we applied the proper unit of prosecution analysis to the facts oí Lopez, we noted while the defendant may have had two distinct quantities of cocaine from two separate sources, “none of that evidence was relevant to the unit of prosecution for possession with intent to deliver.” Adel, 136 Wn.2d at 639.
Similarly Davis had two manufacturing operations under his dominion and control at the time of his arrest and now faces multiple convictions for “intent to manufacture.” However, just as in Adel, this additional evidence of multiple locations is simply not relevant to multiply the units of prosecution from a single intent to manufacture.
Both Lopez and the instant case can be distinguished from State v. McFadden, 63 Wn. App. 441, 820 P.2d 53 (1991) which was also examined in Adel. McFadden was convicted twice under the possession with intent to deliver statute. McFadden, 63 Wn. App. at 443. When arrested, McFadden had two distinct quantities of contraband under his dominion and control. Id. Even though the McFadden court failed to properly apply the unit of prosecution analysis, this court in Adel agreed in the result. Adel, 136 Wn.2d at 638. However, in so doing, we cautioned our conclusion was “not premised on the fact that the drug was found in two different locations” but rather upon “the showing [of] two separate and distinct intents to deliver . .. .”7 Id. These cases illustrate how simply finding a drug in multiple locations is insufficient to warrant multiple convictions absent independent indicia of a separate intent.
With regard to intent to manufacture, I conclude our *182legislature has enacted a statute describing a clear and unambiguous unit of prosecution based on intent, without regard to singularity of location. But even if we were to assume the statute does not clearly reflect this legislatively defined unit of prosecution based on intent, not location, the result would be no different. This is because when a statute is subject to two or more reasonable interpretations, its ambiguity must be resolved in favor of lenity. State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993); Bell, 349 U.S. at 83.
While counsel for the State and the Attorney General both contend the statute is unambiguous, they disagree as to what exactly that “unambiguous” unit of prosecution is. Both contend a separate and distinct intention to manufacture will give rise to a separate and distinct basis for conviction, Supplemental Br. of Resp’t at 9; Amicus Curiae Br. of Att’y Gen. (Amicus) at 4, but according to the Attorney General the statute “does not make criminal the business of manufacturing a controlled substance, but penalizes successive productions and harvests.” Amicus Br. at 6-7. The Attorney General posits “each successive grow and harvest constitute separate and distinct intents to manufacture.” Id. at 7.
However the State disagrees with the Attorney General’s assessment of what constitutes a “unit of prosecution” under RCW 69.50.401(a). The State contends while the Attorney General’s position on the “unit of prosecution” may be reasonable as applied to marijuana, it may ultimately be unreasonable “because it is not necessarily applicable to the manufacturing of other controlled substances.”8 Resp’t’s Br. in Resp. to Amicus Br. at 3.
*183In any event, Bell makes clear “if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses . . ." Bell, 349 U.S. at 84. Thus, in light of Bell and Adel, our path is clear: We must favor any reasonable interpretation which characterizes conduct as a single offense rather than multiple ones.
Whether one determines that the statute is unambiguous and there is only one possible unit of prosecution; or whether one determines that the statute is ambiguous, thus implicating the rule of lenity, the fact remains that Mr. Davis’s multiple convictions punish him more than once for the same single criminal intent. Such clearly violates the right not to be placed twice in jeopardy as guaranteed by both the state and federal Constitutions.
I therefore respectfully dissent.
Johnson, J., concurs with Sanders, J.
With respect to double jeopardy, the Washington State Constitution offers at least the same scope of protection as the United States Constitution. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998).
See, e.g., State v. Till, 139 Wn.2d 107, 985 P.2d 365 (1999) (the legislature clearly defined the unit of prosecution for rape and a new offense is committed upon EACH penetration, no matter how slight).
Such a model was proposed by the Attorney General but rejected by the majority. See Majority at 176-77.
Tili, 139 Wn.2d 107, is a perfect example of the Washington State Legislature precisely defining a unit of prosecution.
McFadden clearly intended to deliver the drugs on his person to the occupants of the apartment, and he clearly intended to deliver the drugs that were in his van to some other person in future. Adel, 136 Wn.2d at 638.
In its reply brief, the State gives examples of how the Attorney General’s position on the unit of prosecution might be unreasonable. In particular, the State notes that “ ‘crack’ cocaine and methamphetamine are ‘cooked’ in batches, sometimes on a daily basis.” Resp’t’s Br. in Resp. to Amicus Br. at 3. The State further notes that under the Attorney General’s interpretation of the unit of prosecution, “an offender who maintained a small growing operation to provide a continuous marijuana supply for personal use would be subject to multiple units of prosecution.” Id. I find this statement somewhat exceptional in light of the State’s position in this matter, and can only surmise that the State views the issue in terms of *183where the manufacturing takes place. Presumably the State asserts that it would not seek multiple counts for “an offender who maintained a small growing operation to provide a continuous marijuana supply for personal use” so long as the offender had only one grow operation. Does this mean the State would seek multiple convictions if the same offender maintained a single plant at both his primary residence and his vacation home?