¶28 (concurring) — I join the court in our quest to find the correct result in this case. Although I arrived at the same end as my colleagues Justice Fairhurst and Justice Sanders, I made my way over different, easier grounds. I found it unnecessary to enter the murky waters of implied acquittal or climb the lofty mountains of double jeopardy. The legislature has provided us firm statutory ground upon which to make our journey, and we should keep our feet on the path laid down.
Chambers, J.¶29 Under our legal system, both the prosecutor and the accused must make many difficult choices. If the prosecutor charges and attempts to prove too high a degree of crime, she risks acquittal. If the prosecutor charges and proves too low a degree of crime, there is a risk that the accused will be convicted but receive an unjustly light punishment. If the prosecutor seeks a lesser included offense instruction, she *793takes a risk that the jury may compromise on a lesser degree. Cf. State v. Labanowski, 117 Wn.2d 405, 420, 816 P.2d 26 (1991).
¶30 The accused is faced with similarly difficult choices. If the facts support it, the accused can seek, and is entitled to, an instruction on a lesser included offense. State v. Gallagher, 4 Wn.2d 437, 447, 103 P.2d 1100 (1940). Or if the accused believes that he has been overcharged, he may choose to not offer an instruction on a lesser included offense in hopes of a clean acquittal. If the question is debatable, the accused may be wise to offer an instruction on a lesser included offense and thereby give the jury a choice of convicting on a lesser degree of offense.
¶31 The process is designed in part to ensure the accused is charged and convicted of the proper degree of the crime. To ensure this process works, and to ensure that a person is not tried twice for the same criminal act, the legislature has legislated:
Whenever a defendant shall be acquitted or convicted upon an indictment or information charging a crime consisting of different degrees, he cannot be proceeded against or tried for the same crime in another degree, nor for an attempt to commit such crime, or any degree thereof.
RCW 10.43.050.8 But see State v. Ahluwalia, 143 Wn.2d 527, 22 P.3d 1254 (2001).9 We need to journey no further than this statute, for it contains the answers we seek.
*794¶32 Here Roy Bernard Linton went to trial on a charge of first degree assault. The jury was instructed upon, and returned a verdict in favor of, the lesser included offense of second degree assault. By the plain language of RCW 10.43.020 and .050, the legislature has provided its own protection against successive trials where an accused has been either convicted or acquitted for any degree of that offense. Cf. State v. Brown, 127 Wn.2d 749, 756-57, 903 P.2d 459 (1995) (after a successful appeal, a “defendant cannot be retried on charges greater than the charge for which he was convicted”) (citing State v. Markle, 118 Wn.2d 424, 441, 823 P.2d 1101 (1992)); see also generally Labanowski, 117 Wn.2d 405 (laying out benefits of implied acquittal approach).
f33 Not only does application of this statute greatly decrease the chance that the State will violate the double jeopardy clause, it serves the salutatory purpose of, most of the time, giving the State only one bite at the apple of conviction. See generally Labanowski, 117 Wn.2d at 420 (surveying costs and burdens imposed by successive trials). Under our statutory law, Linton should not have been placed twice in jeopardy. RCW 10.43.020, .050. Accord Brown, 127 Wn.2d at 756-57; California v. Fields, 13 Cal. 4th 289, 296, 914 P.2d 832, 52 Cal. Rptr. 2d 282 (1996). We need go no further than that.
|34 Because I believe that the correct result has been reached, I respectfully concur in result.
After modification, further reconsideration denied June 19, 2006.
RCW 10.43.050 must be read in conjunction with RCW 10.43.020:
Offense embraces lower degree and included offenses. When the defendant has been convicted or acquitted upon an indictment or information of an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment or information for the offense charged in the former, or for any lower degree of that offense, or for an offense necessarily included therein.
RCW 10.43.020.
For the reasons recited in my Ahluwalia dissent, I believe Ahluwalia should be overruled. We have incorrectly read the statute, and our misreading is actually harmful to our state’s jurisprudence. See Ahluwalia, 143 Wn.2d at 542-46 (Chambers, J., dissenting); see also Greene v. Rothschild, 68 Wn.2d 1, 8, 402 P.2d 356, 414 P.2d 1013 (1965) (articulating governing rules for overruling cases).