¶24
Sanders, J.(dissenting) — “It is nonsensical to speak of a criminal act. . . that results in death as being part of the res gestae of that same criminal act since the conduct constituting [the criminal act] and the homicide are the same.” In re Pers. Restraint of Andress, 147 Wn.2d 602, 610, 56 P.3d 981 (2001). An unduly harsh result occurs when an individual is convicted of murder and “the State does not have to prove intent to kill, or, indeed, any mental element as to the killing itself.” Id. at 614. Standing on the pillars of these well-reasoned principles, Justice Madsen, writing for the Andress majority, properly held assault may not serve as a predicate offense to support a conviction for second degree felony murder. Id. at 610.
¶25 However today the court reverses course and refuses to “extend” Andress’s reasoning to situations where an individual commits acts constituting “drive-by shooting.”4 The reasoning of Andress need not be extended here, as the principles enunciated apply with equal force to drive-by shooting. Since the principles supporting our decision in Andress have not diminished in import, I would hold drive-by shooting cannot serve as the predicate felony for second degree felony murder for the same reasons assault cannot serve as the predicate felony.
¶26 Second degree felony murder punishes deaths caused “in the course of and in furtherance of” a felony. RCW 9A.32.050(1)(b). To be caused “in furtherance” of a felony, a death must be “sufficiently close in time and place to the [felony] to be part of the res gestae of that felony.” *337State v. Leech, 114 Wn.2d 700, 709, 790 P.2d 160 (1990). In Andress we applied this definition and found assault is not available as a predicate offense because “the assault is not independent of the homicide.” Andress, 147 Wn.2d at 610. Because the assault is always intertwined with the death, there is never a res gestae issue, making “the ‘in furtherance of’ language . . . meaningless as to that predicate felony [of assault].” Id. Since a death cannot be both the direct result of and part of the res gestae of felony, the “in furtherance” language is meaningless where the predicate felony directly leads to death. Id. at 611. Since the court “will not construe a statute to reach an absurd result,” the court refused to give effect to the felony murder statute where part of the statute is made meaningless. Id. at 610. Where a felony is directly related to the charged death, it renders the “in furtherance” language meaningless and may not be used as a predicate felony.
¶27 Like assault, drive-by shooting is intimately intertwined with the death of a victim. Reviewing the facts supporting the defendants’ convictions demonstrates the truth of this statement. Johnny Nav “stuck his arm out the window of the moving vehicle and fired several shots” at a group of people, killing one and injuring two others. Suppl. Br. of Resp’t (Nav) at 1-2. Jacob Bowman “drove to an apartment complex . . . and fired seven-to-nine bullets into an apartment”; two of these bullets struck and killed the victim. Suppl. Br. of Resp’t (Bowman) at 2. There can be no principled understanding of these facts as anything except directly connected to the death of the victims. Because a drive-by shooting is always directly connected to the death, Andress’s reasoning prohibits using drive-by shooting as a predicate offense for felony murder.
¶ 28 The Andress court also found a conviction based on assault as a predicate felony was unduly harsh because the State would not be required to prove “any mental element as to the killing itself.” Andress, 147 Wn.2d at 614. This “ ‘violates the most fundamental principle of the criminal law — “criminal liability for causing a particular result is *338not justified in the absence of some culpable mental state in respect to that result.” ’ ” State v. Tamalini, 134 Wn.2d 725, 746, 953 P.2d 450 (1998) (Sanders, J., dissenting) (quoting Commonwealth v. Matchett, 386 Mass. 492, 436 N.E.2d 400, 409 (1982) (quoting People v. Aaron, 409 Mich. 672, 299 N.W.2d 304, 328 (1980))). In Andress we applied this principle to felony murder based on assault, stating:
[I]f assault can serve as the predicate felony for the second degree felony murder rule, then a negligent third degree assault resulting in death can be second degree murder, although RCW 9A.32.070(1) provides that a person who with criminal negligence causes the death of another is guilty only of second degree manslaughter. That makes little sense.
Andress, 147 Wn.2d at 615. This discrepancy in punishment led the court to determine assault could not be used as a predicate felony.
¶29 In Andress we found punishing a defendant for murder without a mental state of equivalent culpability was unduly harsh. Drive-by shooting does not require proof of intent to harm an individual.5 As defined in RCW 9A.36.045, drive-by shooting merely requires an individual to “recklessly discharge! ] a firearm” from a vehicle. Today’s decision creates a discrepancy in punishment previously condemned by Andress. Under the majority’s reasoning, a person can be found guilty of second degree murder for recklessly discharging a firearm, even though when a person recklessly causes the death of another, they are guilty of first degree manslaughter under RCW 9A.32.060(1)(a). “That makes little sense.” Andress, 147 Wn.2d at 615.
¶30 The majority contends drive-by shooting can be credibly distinguished from assault here because drive-by shooting “does not criminalize conduct that causes bodily *339injury or fear of such injury.”6 Majority at 332. However this difference is illusory, as the victims of a drive-by shooting will certainly either be injured or fear an injury from the gunshot. The legislature apparently understands the similarity of the charges because it codified drive-by shooting under the assault chapter of the Revised Code of Washington, chapter 9A.36 RCW. Furthermore, the actions taken by Bowman and Nav if done on foot would constitute second degree assault. There is simply no material difference justifying the disparate treatment of drive-by shooting and assault as a predicate felony.
¶31 I see no reason to retreat from the well-reasoned principles enunciated in Andress. Drive-by shooting, like assault, is a felony leading directly to death. Allowing drive-by shooting to serve as a predicate to felony murder will punish a defendant for murder without proving any intent to kill. There is no principled reason to refuse to apply the reasoning in Andress to find drive-by shooting cannot act as the predicate felony for second degree felony murder.
¶32 I dissent.
Fairhurst, J., concurs with Sanders, J.
We refer to the defendants’ predicate crimes as “drive-by shooting.” See majority at 327 n.1.
The defendant need not target any specific individual or attempt to harm any specific individual. The defendant’s actions must merely be reckless, and place an individual at risk, even unwittingly.
In addition, the majority contends “[d]rive-by shooting does not require a victim” and “unlike in the case of assault, homicide can be committed without reckless discharge of a firearm.” Majority at 332. However, the person risking injury can very easily be termed a victim of the drive-by shooting. In addition, “it is possible to kill someone without committing an assault. For example, the death could result from criminal mistreatment.” Reply Br. (Bowman) at 2.