¶21 I agree with the majority's conclusion that manslaughter is not a lesser included offense of second degree felony murder where second degree assault is the predicate felony. I also note, as the majority does, that the parties have not argued that manslaughter is an inferior degree offense of felony murder, presumably because this court held in State v. Tamalini,134 Wn.2d 725, 730-35, 953 P.2d 450 (1998) that it is not. However, I am writing separately to encourage the legislature to take a closer look at the statutory scheme that permits a conviction for second degree felony murder based on second or third degree assault, with no right to request jury instructions on manslaughter as an inferior degree offense.
¶22 In 2002, this court held in In re Personal Restraint ofAndress, 147 Wn.2d 602, 56 P.3d 981 (2002), that assault could not serve as the predicate felony under the second degree felony murder statute, former RCW 9A.32.050(1)(b), as it then existed (following recodification and amendment in 1975, see LAWS OF 1975, 1st Ex. Sess., ch. 260, § 9A.32.050; LAWS OF 1975-76, 2d Ex. Sess., ch. 38, § 4). In 2003, the legislature responded toAndress by including assault as a predicate felony for second degree felony murder, RCW 9A.32.050(1)(b). LAWS OF 2003, ch. 3, § 2. However, the legislature made no distinctions based upon the type or degree of felony assault that can serve as the predicate felony for felony murder, and it has not acted to provide for manslaughter as an inferior degree offense of *Page 471 felony murder. Thus, as things now stand, this state has an exceedingly harsh statutory scheme where a defendant may be convicted of murder when the killing of another resulted from the defendant's reckless conduct or, worse yet, criminal negligence.
¶23 Early on, this court recognized that felony murder does not include as an element the state of mind of the defendant at the time of the killing; instead, the statute "substitutes the incidents surrounding certain felonies" for the mental state otherwise necessary to prove murder. State v. Craig,82 Wn.2d 777, 781, 514 P.2d 151 (1973) (citing State v. Whitfield,129 Wash. 134, 138-39, 224 P. 559 (1924)). "In effect, the intent to commit the felony is substituted for the premeditation or intent that would otherwise be necessary to establish murder." 13A SETH A. FINE DOUGLAS J. ENDE, WASHINGTON PRACTICE: CRIMINAL LAW § 1508, at 289 (2d ed. 1998 Supp. 2005) (hereafter CRIMINAL LAW).
¶24 However, where second degree felony murder is based on assault, the substitution can result in extremely disproportionate punishment. Under RCW 9A.36.021(1)(a), an assault is a felony if the defendant "[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm." Where this kind of assault is the predicate felony for felony murder, "then the mental state for murder is reduced all the way to recklessness, whenever an intentional assault has been committed." CRIMINAL LAW § 1508, at 290. In such cases, "[t]he unintended outcome of the assault causes two successive increases in the severity of the crime": First, "[t]he infliction of substantial bodily harm raises the assault from a gross misdemeanor to a felony" and second, "then this felony becomes the basis for felony-murder." Id. As the commentators10 point out, despite these problems this theory of second degree felony murder has been upheld. Id.; see State v. Goodrich,72 Wn. App. 71, *Page 472 863 P.2d 599 (1993); State v. Langford, 67 Wn. App. 572,837 P.2d 1037 (1992).
¶25 Thus, a defendant can be charged and convicted of second degree murder under RCW 9A.32.050(1)(b) based on assault in the second degree under RCW 9A.36.021(1)(a) where he or she intentionally assaults another and unintentionally butrecklessly inflicts substantial bodily harm. Compare this to manslaughter in the first degree under RCW 9A.32.060(1)(a), where guilt is based on recklessly causing the death of another person.
¶26 An even more serious problem "could arise from use of another means of committing a felonious assault: by the infliction of bodily harm with criminal negligence, if the harm is either inflicted with a weapon or is accompanied by substantial pain that extends for a period sufficient to cause considerable suffering." CRIMINAL LAW § 1508, at 291 (citing RCW 9A.36.031(1)(d), (f)). Thus, the statutes authorize a conviction for second degree murder based on "a purely negligent killing." CRIMINAL LAW § 1508, at 291.
¶27 Again, a comparison to the manslaughter statutes is illuminating. Under RCW 9A.32.070(1), "[a] person is guilty of manslaughter in the second degree when, with criminalnegligence, he [or she] causes the death of another person." (Emphasis added.)
¶28 When compared to punishments for first and second degree manslaughter, the disproportionate punishment for second degree felony murder based upon second degree assault where the homicide occurs as a result of the defendant "recklessly inflict[ing] substantial bodily harm," RCW 9A.36.021(1)(a), or results from a first degree assault where the defendant acts with "criminal negligence," RCW 9A.36.031(1)(d), (f), is obvious. Second degree murder is a level XIV offense, while first degree manslaughter is a level XI offense, and second degree manslaughter is a level VIII offense. RCW 9.94A.515. Assuming a zero offender score, the standard range sentences are: for second degree felony murder, a level XIV offense, 123-220 months; for first degree manslaughter, a level XI offense, 78-102 months; *Page 473 and for second degree manslaughter, a level VIII offense, 21-27 months. RCW 9.94A.510.
¶29 I cannot help but think that when the legislature amended RCW 9A.32.050(1)(b) to add assault as a predicate felony for second degree felony murder, it did not have in mind the full ramifications of the amendment. There is no logic to statutes that effectively transform manslaughter into felony murder. And noted authority has said that "manslaughter will not . . . serve as a felony for purposes of the felony-murder doctrine." 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 14.5 (2d ed. 2003 Supp. 2005).
¶30 The problems posed by the second degree felony murder statute and assault statutes call for change. In the past, one way in which the harshness of the felony murder doctrine was ameliorated was through jury instructions which gave the jury the option of convicting the defendant of first or second degree manslaughter as a lesser included or inferior degree offense.See, e.g., State v. Berry, 52 Wn.2d 748, 328 P.2d 891 (1958);State v. Paschall, 197 Wash. 582, 85 P.2d 1046 (1939); Statev. Cooley, 165 Wash. 638, 5 P.2d 1005 (1931); see RCW 10.61.003 (where the defendant is charged with "an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged . . . and guilty of any degree inferior thereto"); RCW 10.61.010 (conviction of lesser crime).
¶31 Now, however, it is clear, as the majority holds, that manslaughter is not a lesser included offense of second degree felony murder based on assault. Therefore, a jury may not be instructed on manslaughter as a lesser included offense of second degree felony murder based upon assault.
¶32 Nor can a jury be instructed on manslaughter as an inferior degree of second degree felony murder based upon assault. For a crime to be an inferior degree of another crime, the statutes for the charged offense and the proposed inferior degree offense must proscribe only one offense. Tamalini,134 Wn.2d at 732; State v. Peterson, 133 Wn.2d 885, 891,948 P.2d 381 (1997); State v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789 (1979). In Tamalini, the court held that *Page 474 manslaughter is not an inferior degree of second degree felony murder. Tamalini, 134 Wn.2d at 730-35.11
¶33 The legislature could, however, amend the relevant statutes to make clear, for example, that the same offense is proscribed by the first degree manslaughter statute and the second degree felony murder statute — where second degree assault under RCW 9A.36.021(1)(a) is the predicate felony. Similarly, it could provide that the same offense is proscribed by the second degree manslaughter statute12 and the second degree felony murder statute — where third degree assault under RCW 9A.36.031(1)(d) or (f) is the predicate felony.
¶34 Another requirement for an inferior degree offense, though, is that there must be evidence that the defendant committed only the inferior offense. Tamalini,134 Wn.2d at 732; Peterson, 133 Wn.2d at 891; Foster, 91 Wn.2d at 472. This requires examination on a case by case basis of the evidence that establishes the criminal acts. This evidentiary test may be particularly troublesome where second degree felony murder is based on third degree assault of another under RCW 9A.36.031(1)(d) or (f). Evidence establishing second degree manslaughter due to criminal negligence, RCW 9A.32.070(1), may very well constitute evidence that the defendant committed third degree assault. If so, the evidence will establish the predicate felony for second degree felony murder under RCW 9A.32.050(1)(b), and the evidence accordingly would not show that the defendant committed only the inferior degree offense. Thus, in such circumstances manslaughter would not be an inferior degree offense, and the jury should not be instructed on manslaughter as an inferior degree offense. *Page 475
¶35 Given the huge disparity between punishments for first and second degree manslaughter and the punishment for second degree felony murder predicated on assault, and given the difficulty in meeting the evidentiary test for an inferior degree offense in the case of assault in the third degree, the legislature should consider whether all felony assaults should continue to serve as predicate felonies for second degree felony murder.
¶36 Originally, the felony murder doctrine was confined to felonies recognized at common law, nearly all of which were punishable by death. Andress, 147 Wn.2d at 606 (citing Statev. Harris, 69 Wn.2d 928, 931, 421 P.2d 662 (1966)). With the passage of time, crimes that were once characterized as misdemeanors and gross misdemeanors have become, under our statutory scheme, felonies. Andress, 147 Wn.2d at 606. With this great expansion of the type and range of felonies, Washington's second degree felony murder statute sweeps within its scope offenses that bear little relationship to felonies sufficiently serious to justify a second degree murder conviction under the felony murder doctrine.
¶37 I have focused here primarily on three of the assaults that can serve as predicate felonies for second degree felony murder, i.e., second degree assault under RCW 9A.36.021(1)(a) and third degree assault under RCW 9A.36.031(1)(d) and (f). If the legislature revisits the second degree felony murder doctrine, as I hope it will, the remaining felony assaults should also be reassessed to determine if they should serve as predicate felonies for second degree felony murder. For example, third degree assault also occurs where an individual "`[a]ssaults a person employed as a transit operator or driver . . . while that person is performing his or her official duties.'" Andress,147 Wn.2d at 614 (quoting RCW 9A.36.031(1)(b)). It is questionable whether such an assault should serve as the predicate felony for a second degree felony murder conviction.
¶38 I do not suggest that acts leading to the death of another person should be treated lightly. But our statutory *Page 476 scheme already recognizes, as it should, that culpability for criminally causing the death of another is not the same for manslaughter as it is for murder. Unfortunately, the statutory scheme also allows a number of homicides that in all material respects resemble manslaughter to be ratcheted up to second degree murder under the felony murder doctrine. The legislature should consider altering the statutory scheme to provide for manslaughter as an inferior degree offense of second degree murder, at least in some circumstances, and should narrow the range of assaults that can serve as the predicate felony for second degree felony murder.
¶39 I concur in the result reached by the majority.
SANDERS, J., concurs with MADSEN, J.