(dissenting) — The majority holds that proof of felony violation of a no-contact order does not require the state to prove the predicate assault is not first or second degree assault. Majority at 806. However, the relevant language of the statutes unambiguously requires just that:
Any assault that is a violation of an order issued under this section and that does not amount to assault in the first or second degree under RCW 9A.36.011 or 9A.36.021 is a class C felony....
Former RCW 10.99.040(4)(b), .050(2) (1997) (emphasis added).
The majority’s holding violates the most fundamental rule of statutory construction as well as our holding in State v. Azpitarte, 140 Wn.2d 138, 995 P.2d 31 (2000) (per curiam). If the language of a statute is unambiguous we derive its meaning from the language of the statute alone without further judicial interpretation. Wash. State Coalition for the Homeless v. Dep’t of Soc. & Health Servs., 133 Wn.2d 894, 904, 949 P.2d 1291 (1997); State v. Thorne, 129 Wn.2d 736, 762-63, 921 P.2d 514 (1996). Furthermore, we *817do not delete language from a clear statute even if the legislature intended something else but failed to express it adequately. Azpitarte, 140 Wn.2d 138; Wash. State Coalition for the Homeless, 133 Wn.2d at 904 (citing Geschwind v. Flanagan, 121 Wn.2d 833, 841, 854 P.2d 1061 (1993); Adams v. Dep’t of Soc. & Health Servs., 38 Wn. App. 13, 16, 683 P.2d 1133 (1984)). We recognized in Azpitarte that RCW 10.99.040 is unambiguous and that it “clearly excludes the use of first and second degree assaults to elevate violation of a no-contact order from a gross misdemeanor to a felony.” 140 Wn.2d at 141.
Nonetheless, the majority holds that any assault can serve as predicate to felony violation of a no-contact order so long as the prosecution does not separately charge first or second degree assault. Majority at 806. This intrudes on the power of the legislature to legislate, a power given the legislature, not the judiciary, under our state constitution. See Const. art. II, § 1. Moreover, the power to define crimes and maximum punishments is fundamentally legislative and subject to judicial review in only limited circumstances (which are not alleged to apply here). See State v. Ermert, 94 Wn.2d 839, 847, 621 P.2d 121 (1980). This court should “resist the temptation to rewrite an unambiguous statute to suit our notions of what is good public policy, recognizing the principle that ‘the drafting of a statute is a legislative, not a judicial, function.’ ” State v. Jackson, 137 Wn.2d 712, 725, 976 P.2d 1229 (1999) (quoting State v. Enloe, 47 Wn. App. 165, 170, 734 P.2d 520 (1987)). These statutes limit liability to assaults not amounting to first or second degree assault; but the majority expands the statutes to include these assaults.
The majority asserts support for its claim in RCW 10.99.010, the legislative intent section of chapter 10.99 RCW, the domestic violence law. Majority at 813. That statute provides in part, “The purpose of this chapter is to recognize the importance of domestic violence as a serious crime against society and to assure the victim of domestic violence the maximum protection from abuse which the law *818and those who enforce the law can provide.” RCW 10.99.010. As discussed above, it is improper to look outside the unambiguous text of the statute, but even if we were justified in considering legislative intent here, that intent is not served by the majority. RCW 10.99.010 also provides:
The legislature finds that the existing criminal statutes are adequate to provide protection for victims of domestic violence. However, previous societal attitudes have been reflected in policies and practices of law enforcement agencies and prosecutors which have resulted in differing treatment of crimes occurring between cohabitants and of the same crimes occurring between strangers. . . . [i]t is the intent of the legislature that criminal laws be enforced without regard to whether the persons involved are or were married, cohabiting, or involved in a relationship.
Under the majority’s construction, the prosecution is permitted to treat assaults serious enough to charge as first or second degree assault, i.e., as class A or B felonies, as felony violations of a no-contact order instead, i.e., as a class C felony. This allows prosecutors to treat assaults in domestic situations less seriously than other assaults, which is directly contrary to the legislative intent expressed in RCW 10.99.010.
Although the statutes’ clear language excludes first and second degree assaults as predicates to felony violation of a no-contact order, the special jury instructions in these trials did not include this element, asking only “[w]as the conduct that constituted a violation of the no-contact order in Count I an assault?” Clerk’s Papers (CP) Baker at 52.3 As discussed above, our holding in Azpitarte and the clear language of the statutes require that the predicate assault for felony violation of a no-contact order not be first or second degree assault. Under the sixth and fourteenth amendments to the United States Constitution the State must prove every fact necessary to constitute a charged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, *819364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Acosta, 101 Wn.2d 612, 615, 683 P.2d 1069 (1984). Determination of the level of assault is therefore necessary for conviction and this element, like any other, must be proved beyond a reasonable doubt to the jury. Furthermore, the Supreme Court has held that a fact which increases the maximum penalty under a state or federal statute must be included in the charging document, submitted to a jury, and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Proof of this necessary fact was not included in the jury instruction, relieving the prosecution of its burden to prove every element. Failure to instruct the jury on an element of the charged crime is manifest constitutional error. State v. Scott, 110 Wn.2d 682, 688 n.5, 757 P.2d 492 (1988). The remedy is reversal. See, e.g., State v. Smith, 131 Wn.2d 258, 265-66, 930 P.2d 917 (1997); State v. Miller, 131 Wn.2d 78, 90-91, 929 P.2d 372 (1997); State v. Byrd, 125 Wn.2d 707, 713-14, 716, 887 P.2d 396 (1995).
Furthermore, the charging document in each case failed to include the requirement that the predicate assault be one not amounting to first or second degree assault. CP Baker at 7; CP Ward at 58. Every essential element of an offense must be included in the information to give defendants adequate notice of what they are charged with so that they may adequately prepare a defense. State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991). Where, as here, the challenge to the information is raised only on appeal, the information will pass constitutional muster even if the missing element is “fairly implied from language within the charging document.” Kjorsvik, 117 Wn.2d at 104; State v. Moavenzadeh, 135 Wn.2d 359, 363, 956 P.2d 1097 (1998); RCW 10.37.050 (“The indictment or information is sufficient if it can be understood therefrom .... (6) [t]hat the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended . .. .”). But merely *820citing to pertinent statutes or naming the offense is insufficient unless that name informs the defendant of each essential element. State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995). The remedy for an insufficient information is reversal without prejudice. State v. Simon, 120 Wn.2d 196, 199, 840 P.2d 172 (1992).
In conclusion, the clear language of then RCW 10.99.040 and RCW 10.99.050 excludes first and second degree assault as predicates to felony violation of a no-contact order. Because the level of assault determines the maximum penalty it must be included in the charging document, instructions to the jury, and be proved beyond a reasonable doubt. In these cases that was not done and, as a result, the convictions of petitioners for felony violation of a no-contact order must be reversed.
I dissent.
Alexander, C.J., and Johnson, J., concur with Sanders, J.
“Was the conduct that constituted a violation of the no-contact order an assault?” CP Ward at 14.