(dissenting) — Double jeopardy review turns on legislative intent. State v. Calle, 125 Wn.2d 769, 778, 888 P.2d 155 (1995); majority at 49. The majority concedes there is no express language in the vehicular homicide and second degree murder statutes authorizing multiple punishments for a single homicide, yet it upholds Percer’s convictions for felony murder and vehicular homicide for the death of a single individual. Majority at 44, 50.
A defendant’s “double jeopardy rights are violated if he or she is convicted of offenses that are identical both in fact and in law.” Calle, 125 Wn.2d at 777. Failure under the same evidence test creates a strong presumption in favor of multiple punishments, which may be overcome by clear legislative intent to the contrary. Id. at 778, 780.
That the legislature did not intend to provide multiple punishments for a single killing is clear from the text of RCW 9A.32.010, which defines homicide in the disjunctive as either murder, homicide by abuse, or manslaughter. The disjunctive definition indicates “one killing equals one homicide; one unlawful homicide equals either murder, homicide by abuse, or manslaughter. From this we find that the legislature did not intend to provide multiple punishments for a single homicide.” State v. Schwab, 98 Wn. App. 179, 188-89, 988 P.2d 1045 (1999). As the majority notes, the legislative history of the vehicular homicide statute indicates legislative intent to categorize vehicular homicide as a type of general manslaughter. Majority at 51; see also State v. Collins, 55 Wn.2d 469, 470, 348 P.2d 214 (1960). Vehicular homicide is “one specific mode of committing a homicide.” Collins, 55 Wn.2d at 470. It follows the legislature did not intend multiple punishments under the vehicular homicide and felony murder statutes for the same *56conduct. Moreover, “ ‘the generally accepted notion that one death should result in only one homicide conviction’ overcomes the presumption of multiple punishment.” State v. Santillanes, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456, 459 (quoting State v. Santillanes, 2000-NMCA-017, ¶ 8, 128 N.M. 752, 998 P.2d 1203, 1207).
The majority reaches a contrary result based largely on a purported difference in purpose between the vehicular homicide and manslaughter statutes. This conclusion is inconsistent with Collins, which held that the vehicular homicide statute1 supersedes the manslaughter statute. 55 Wn.2d at 470. If the vehicular homicide statute were truly geared toward punishing bad driving as the majority contends, then it would not supersede the manslaughter statute, but rather supplement it. We must conclude therefore the legislature enacted the vehicular homicide statute to punish the defendant for killing a person, not for bad driving. Moreover, although RCW 46.61.520 does not refer specifically to the homicide statute, it nonetheless provides for punishment under chapter 9A.20 RCW. See RCW 46-.61.520(2). Because both the vehicular homicide and the second degree murder statutes refer to the same chapter for the classification of the crimes, the location of the vehicular homicide statute is not as significant as the majority contends.
Percer’s subsequent conviction for felony murder also should be barred on grounds of successive prosecution. The double jeopardy clause not only protects against “ ‘ “multiple punishments for the same offense,” ’ ” it also “ ‘ “protects against a second prosecution for the same offense after conviction.” ’ ” Ohio v. Johnson, 467 U.S. 493, 498, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984) (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) *57(quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 795, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989))). “[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby [(1)] subjecting him to embarrassment, expense and ordeal and [(2)] compelling him to live in a continuing state of anxiety and insecurity, as well as [(3)] enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). “Where successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of finality for the defendant’s benefit.’ That policy protects the accused . .. from attempts to secure additional punishment after a prior conviction and sentence.” Brown, 432 U.S. at 165-66 (citation omitted) (quoting United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 554, 27 L. Ed. 2d 543 (1971)). It is “immaterial” whether “conviction of the greater [offense] precedes the conviction of the lesser.” Brown, 432 U.S. at 168. Where a defendant has been convicted based on a guilty plea, double jeopardy will preclude a subsequent conviction for the same offense. State v. Crisler, 73 Wn. App. 219, 222-23, 868 P.2d 204 (1994), aff’d sub nom. State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995), relying on former RCW 9.94A.030(9) (1994) (defining “conviction” unter anderem as the court’s “acceptance of a plea of guilty”).
Relying on Crisler, the Court of Appeals determined that because Percer had previously pleaded guilty to vehicular homicide before he was tried and convicted for felony murder, affirming his subsequent conviction would violate the double jeopardy prohibition against second prosecution for the same offense after conviction. In re Pers. Restraint of Percer, 111 Wn. App. 843, 849-50, 47 P.3d 576 (2002). As a result it vacated the felony murder conviction and allowed the vehicular homicide conviction to stand. Id. at 850. The majority claims the Court of Appeals’ reliance on Crisler is *58misplaced because the defendant in that case was not charged with a second crime until after she had pleaded guilty to the first crime. Majority at 53.
That the majority creates a distinction without a difference is evidenced by Brown, where the Supreme Court considered whether the double jeopardy clause protects a defendant who enters a guilty plea to a lesser offense from subsequent prosecution for a greater offense based on the same incident. 432 U.S. at 168. Like the defendant in Crisler, Brown was not charged with a second crime (car theft) until after he had pleaded guilty to a first crime (joyriding). The Court reversed Brown’s subsequent conviction for the greater offense of auto theft, holding: “Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.” Id. at 169. Justice Brennan’s concurrence indicates the fact the defendant was not charged with both crimes in the same charging document was of no moment to the Brown Court. He expresses regret the Court had not considered the additional ground for reversal that “the State did not prosecute petitioner in a single proceeding.” Id. at 170 (Brennan, J., concurring).
The majority also relies on CrR 4.3.1(b)(4)’s provision that allows the State to prosecute an individual for a related offense after he or she has entered a guilty plea. Majority at 54. As the majority indicates that rule applies only if the legislature intended multiple punishments for a single offense. Majority at 54. For the reasons indicated above I cannot conclude the legislature did so intend.
I therefore respectfully dissent.
At the time Collins was decided, the vehicular homicide statute was located in former RCW 46.56.040 (1937), and was termed “negligent homicide by means of a motor vehicle.” These differences from the current vehicular homicide statute are insignificant to this analysis, as the State’s argument that vehicular homicide serves a different purpose than felony murder hinges on the statute’s location in Title 46 RCW.