(dissenting) — The court today reexamines the argument that assault cannot be the predicate felony for second-degree felony murder, an argument which we have, for sound reasons, explicitly rejected. This court has consistently declined to apply the merger doctrine to exclude a felonious assault resulting in death as the basis for a second degree felony murder charge. The court should maintain this position in order to give effect to the intent and purpose of the Legislature in creating the second degree felony murder statute. Limstrom v. Ladenburg, 136 Wn.2d 595, 607, 963 P.2d 869 (1998).
Under Washington’s felony murder provisions, the Legislature’s intent is clear: punish, under the applicable murder statutes, those who commit a homicide in the course or furtherance of a felony. State v. Leech, 114 Wn.2d 700, 708, 790 P.2d 160 (1990) (quoting State v. Wanrow, 91 Wn.2d 301, 308, 588 P.2d 1320 (1978)). The second degree felony murder statute states that a person is guilty when he or she “commits or attempts to commit any felony other than those enumerated in [the first degree felony murder statute].” RCW 9A.32.050(l)(b) (emphasis added). The Legislature has not excluded “assault” from the express statutory language. This court cannot assume that the felony murder rule was not meant to apply in instances where the underlying felony is assault. Applying the merger doctrine to RCW 9A.32.050(l)(b) overrides the legislative intent clearly expressed in the statute and results in “an invasion *618of legislative power to define crimes.” Wanrow, 91 Wn.2d at 309.
This court first declined to apply the merger doctrine to the second degree felony murder statute over 35 years ago in State v. Harris, 69 Wn.2d 928, 421 P.2d 662 (1966). Until now, we have repeatedly rejected invitations to adopt the merger doctrine in this context. See majority at 606-07. The majority contends that the issue bears reassessment because the statute, as examined under Harris and subsequent cases, was revised in 1975 to include the language “in the course of and in furtherance of.” RCW 9A.32.050(l)(b); majority at 607-09. Although the majority points out that the revised language has not yet been interpreted in this context, we determined its meaning in State v. Leech. In Leech, the defendant started a fire which resulted in the death of a fire fighter. He was charged with first degree felony murder. The defendant argued that as the death occurred after he had completed the crime, the death could not be “in furtherance” of the arson. The court rejected this contention, stating that such an interpretation would mean that an arsonist whose fire resulted in a death would almost never be charged with felony murder. 114 Wn.2d at 709. Instead, the court construed the language to mean close proximity in time and distance between the predicate felony and the nonparticipant’s death. Id. The language need not be reinterpreted here.
The majority claims to follow Leech, but in fact construes Leech to support the contention that “an assault on the person killed is not encompassed within the newer version of the second degree felony murder statute.” Majority at 610. The majority distinguishes assault as a predicate crime from arson on the basis that arson is an independent act:
It is nonsensical to speak of a criminal act—an assault—that results in death as being part of the res gestae of that same criminal act since the conduct constituting the assault and the homicide are the same. Consequently, in the case of assault there will never be a res gestae issue because the assault will always be directly linked to the homicide. Therefore, if assault were encompassed within the unenumerated felonies in RCW *6199A.32.050(l)(b), the “in furtherance of” language would be meaningless as to that predicate felony. In short, unlike the cases where arson is the predicate felony, the assault is not independent of the homicide.
Majority at 610. However, this distinction is misleading. The arson in Leech was not independent of the homicide. Leech committed one crime which resulted in a death Leech did not intend. The same is true for Andress. Although a death resulting from an assault might usually be in proximity in time and place to the assault as the majority notes, the same is true of a death resulting from arson. It is precisely this proximity that supports a charge of felony murder.
One concern shared by proponents of merger is that in order to punish and deter felonies that cause death, the felonious act must be separable from the act that causes death. Assault and felony murder, however, are separable because they are independent acts. Not all assaults result in death, and not all felony murders are caused by assault. The two are distinct crimes. See State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998) (the manslaughter and felony murder statutes were enacted to proscribe different types of conduct and describe separate and distinct crimes). This position on merger, abandoned today by the majority, has been maintained not because courts are mechanically bound by precedent, but because the law is clear and unambiguous.
The majority also objects to giving the State the choice to charge second degree felony murder with assault as the predicate crime, thereby escaping the need to prove intent to kill as required for a second degree intentional murder charge. While there may be seemingly unfair consequences when a crime not requiring a specific intent, such as third degree assault, is the predicate crime, that issue is not before the court. Such a case is best addressed in the context of its own facts and our lesser included jurisprudence, rather than to anticipatorily abrogate legislative intent for the sake of a hypothetical. The instant case *620certainly does not fit the hypothetical. Here, Andress elevated the seriousness of his alleged drunken brawl to a felony assault when he formed the specific intent to and did brandish a nine-inch knife to inflict harm on Foster. Under Washington law, using a deadly weapon to cause and inflict serious injury on another is second degree assault. When a felony assault is furthered through such design and precision that it results in the death of a human being, that death is punishable as felony murder.
The court should maintain its position that assault may be the predicate crime for second degree felony murder. To do otherwise is to invade the province of the Legislature and abandon the well-reasoned, established jurisprudence of this court.
Bridge, Chambers, and Owens, JJ., concur with Ireland, J.
After modification, further reconsideration denied March 14, 2003.