(dissenting) — Pursuant to RCW 10.95-.020(11), a person who commits first degree premeditated murder “in the course of, in furtherance of, or in immediate flight from” certain felonies may be convicted of aggravated first degree murder, which is punishable by death or life without the possibility of parole.15 The majority and the concurrence/dissent both agree that the quoted language should be interpreted in the same way as similar language in this state’s felony murder statutes.16 I respectfully disagree.
*531Discussion
¶52 The doctrine of felony murder provides that one who causes the death of another person in the commission of a felony is guilty of murder. While murder statutes generally include as an element some culpable mental state (e.g., RCW 9A.32.030 requiring proof of intent or extreme indifference),17 which the State must prove, the felony murder rule infers the requisite intent to kill whenever a killing occurs during the commission of a felony.
¶53 Under Washington law, to establish a felony murder the State must prove that the killing occurred in the course of, in furtherance of, or in immediate flight from a felony. This “intimate connection” between the killing and the felony is necessary because the felony murder rule transforms the actor’s intent to commit the felony into the intent to commit the homicide. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.5(a) at 206-07 (1986). Thus, the killing must be part of the “res gestae” of the felony, that is, in “close proximity in terms of time and distance.” State v. Leech, 114 Wn.2d 700, 706, 790 P.2d 160 (1990). A “causal connection” must clearly be established between the two. State v. Golladay, 78 Wn.2d 121, 130, 470 P.2d 191 (1970); 2 LaFave & Scott, supra, § 7.5(f)(2), at 225 (discussing “causal connection” necessary between felony and murder in felony murder cases).
¶54 As the majority recognizes, when a homicide is followed by a felony, it is often more difficult, if not impossible, for the State to prove the connection necessary to *532sustain a conviction for felony murder. The prevailing view is that there is no felony murder where the felony was an afterthought. 2 LaFave & Scott, supra, § 7.5(f)(4), at 228. This view is reflected in Golladay. In that case, the defendant claimed he gave the victim and her male companion a ride in his automobile. After dropping them off, he hit an embankment. Witnesses at the accident scene saw him dispose of the victim’s purse and shoes. The victim was later found dead. This court reversed Golladay’s felony murder conviction because we found no intimate connection between a homicide and a larceny committed after the killing. We determined the larceny was separate, distinct, and independent from the homicide. We concluded there was no “legal relation” between the killing and the larceny, pointing to the fact the larceny occurred after the killing and that the killing was not within the res gestae of the larceny. Golladay, 78 Wn.2d at 130. Additionally, we observed:
“ Tt may be stated generally that a homicide is committed in the perpetration of another crime, when the accused, intending to commit some crime other than the homicide, is engaged in the performance of any one of the acts which such intent requires for its full execution, and, while so engaged, and within the res gestae of the intended crime, and in consequence thereof, the killing results. It must appear that there was such actual legal relation between the killing and the crime committed or attempted, that the killing can be said to have occurred as a part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it. In the usual terse legal phraseology, death must have been the probable consequence of the unlawful act. [’]”
Id. at 131 (second emphasis added) (quoting State v. Diebold, 152 Wash. 68, 72, 277 P. 394 (1929) (citation omitted) (quoting 13 Ruling Case Law 845)). Adopting the italicized language above as the definition of “in the course of, in furtherance of, or in immediate flight from” a felony, the majority reverses Hacheney’s aggravated first degree murder conviction because it finds the death here was not a probable consequence of the arson. Majority at 519-20.
*533¶55 I agree with the majority’s construction as it applies to felony murder because, as noted, in a felony murder prosecution the State is required to prove the mental state for the felony as a substitute for intent to commit murder. In contrast, a crime charged under RCW 10.95.020(11) necessarily requires proof that a premeditated intentional murder was committed. Thus, the aggravating factor, that “the murder was committed in the course of, in furtherance of, or in immediate flight from” the crime of arson, is not a substitute for the mental element of murder but only serves to enhance punishment for an intentional murder. Thus, there is no reason to import the construction of the first degree felony murder statute into the aggravated first degree murder statute.
¶56 Moreover, importing felony murder principles into the aggravated murder statute makes no sense in light of the differences in seriousness of first degree murder and aggravated first degree murder. First degree murder is a class A felony, punishable by life in prison. Aggravated first degree murder is a more serious crime and is punishable by death or life in prison without the possibility of parole. The common thread running through the aggravating factors contained in RCW 10.95.020 is some characteristic of the victim or the defendant, or something in the nature of the killing itself, that makes the murder particularly deserving of mandatory life in prison or death. It is certainly the case that the arson here had an aggravating effect on the completed killing. Mr. Hacheney committed arson in order to cover up his murder. By doing so, he enhanced the chances that his crime would go undetected. Indeed, the death occurred in 1997 and was thought to have been accidental. Hacheney was not charged until 2001, after other events led authorities to question the nature of Hacheney’s relationship with his deceased wife. The arson was clearly intended to make the murder investigation more difficult, which it did. Certainly, these circumstances justify a more enhanced punishment than that which is available for first degree murder.
*534¶57 By conflating the elements of felony murder and the aggravating factors of aggravated first degree murder, the majority fails to recognize the different purposes that the language serves, both in the mens rea requirement and the punishment imposed.18
¶58 As mentioned, the majority is correct that the narrow construction it adopts is necessary in the context of a felony murder to assure that the “transferred intent” theory of felony murder is preserved. However, that narrow definition is not necessary in the penalty context. Instead, the court should give the words “in the course of” their usual meaning, which the majority recognizes means an “ ‘ordered continuing process, succession, sequence, or series.’ ” Majority at 518 (quoting Webster’s Third New International Dictionary 522 (2002)).19
¶59 Applying that definition, and viewing the evidence in the light most favorable to the State, as we must, the record establishes that this murder was committed in the course of an arson. Hacheney purchased propane canisters prior to the murder. Then, on Christmas, he placed the canisters in the couple’s bedroom near an electric space heater. After administering Benadryl to his wife, he suffocated her and then set fire to the bedroom.
¶60 I would affirm Mr. Hacheney’s conviction for aggravated first degree murder.
C. Johnson, J., concurs with Madsen, J.
Reconsideration denied August 9, 2007.
RCW 10.95.020 states:
(11) The murder was committed in the course of, in furtherance of, or in immediate flight from one of the following crimes:
(a) Robbery in the first or second degree;
(b) Rape in the first or second degree;
(c) Burglary in the first or second degree or residential burglary;
(d) Kidnapping in the first degree; or
(e) Arson in the first degree;
RCW 9A.32.030 Murder in the first degree. (1) A person is guilty of murder in the first degree when:
(c) He or she commits or attempts to commit the crime of either (1) robbery in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first or second degree, or (5) kidnapping in the first or second degree, and in the course of or in furtherance of such crime *531or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants ....
RCW 9A.32.030 Murder in the first degree. (1) A person is guilty of murder in the first degree when:
(a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person; or
(b) Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person ....
(Emphasis added.)
Even if the majority is correct that the language in RCW 9A.32.030(l)(c) and RCW 10.95.020(11) should be interpreted as having the same meaning, the only case analyzing that language in a charge under RCW 10.95.020(11) held that the language should not be applied literally. Instead, the court said that the inquiry is whether the killing was part of the res gestae of the felony. State v. Brown, 132 Wn.2d 529, 610, 940 P.2d 546 (1997), death sentence rev’d on other grounds sub nom. Brown v. Lambert, 451 F.3d 946 (9th Cir. 2006), cert. granted sub nom. Uttecht v. Brown,_U.S._, 127 S. Ct. 1055, 166 L. Ed. 2d 797 (2007).
The majority falls back on the rule of lenity as a reason for its narrow construction of the aggravating factor. However, that concept is not applicable here because the majority agrees that “in the course of” has a plain meaning. Again, the narrow construction is necessary only to preserve the “transferred intent” element that justifies the felony murder rule.