¶29 (dissenting) — The State describes the shooting in this case as follows: “[Defendant stood in the street [in] front of a house where a crowded party was being held and . . . fired six shots from a semi *747automatic weapon into the crowd of people in the front of the house.”3 The record supports the State’s assertions. E.g., 5 Verbatim Report of Proceedings (VRP) (June 23, 2011) at 408 (police officer testifying that he and other officers found shell casings in the street at the scene of the shooting), 514-15 (crime scene technician testifying that shell casings were found in the street in front of the northeast corner of the house where the shooting occurred); 6 VRP (June 27, 2011) at 565 (witness testifying that Henderson told him that “[Henderson] was shooting into a crowd and [he saw] somebody’s body drop”).
¶30 For the most part, Henderson accedes to the State’s version of events — he cites no conflicting evidence regarding the shooter’s location or the trajectory of the bullets. Indeed, he identifies only two facts as disputed: the shooter’s identity (which is not relevant to the question of his entitlement to the manslaughter instruction) and the number of people standing in front of the house. Suppl. Br. of Resp’t (No. 90154-6) at 3. Henderson argues that he was entitled to the manslaughter instruction because the evidence supported an inference that only two people were in the front yard when the shooting occurred. Id. at 15-16 (“In urging this Court to find that no rational trier of fact could find that Mr. Henderson committed manslaughter rather than first-degree murder, the State ignores the evidence about how many people were in the front yard. . . . [One witness] testified that only a couple of security guards . . . were in the front yard ... at the time the shots were fired.”).
¶31 The majority agrees. It concludes that if only two people were outside at the time of the shooting, “the jury could have concluded that Henderson intended to scare those in the house by erratically firing his gun rather than *748aiming at the security people in the yard.” Majority at 745-46.
¶32 To be sure, the majority is correct that we must construe the facts relating to this issue in the light most favorable to the defendant, not the State. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). The majority is also correct in its description of the facts most favorable to the defendant. Majority at 738-39.
¶33 But the questions of whether there were 2 or 20 people in the line of fire and whether Henderson’s intent was to scare, rather than to kill, are irrelevant to the issue presented in this case. In fact, the defendant’s intent is not the issue at all. This court has held that the factual prong of the Workman4 test requires the trial court to ask whether the evidence raises an inference that the defendant committed the lesser offense “to the exclusion of” the greater charged crime. Fernandez-Medina, 141 Wn.2d at 455. Thus, the majority acknowledges, the issue presented here is whether a rational juror could find that Henderson disregarded a substantial risk that a homicide may occur (the circumstances that constitute the lesser included offense of first degree manslaughter) but did not manifest an “extreme indifference” that created a “grave risk” of death (the circumstances that constitute the greater offense of first degree murder by extreme indifference). Majority at 745.5 The relevant distinctions are between (1) “disregard” and “extreme indifference” and (2) “substantial risk that a homicide may occur” versus “grave risk of death.” Id. (emphasis omitted).6
*749¶34 Both State v. Pettus, 89 Wn. App. 688, 951 P.2d 284 (1998) , and State v. Pastrana, 94 Wn. App. 463, 972 P.2d 557 (1999) , addressed the first distinction, in reasoning that is both relevant to this case and not dependent on the generic definition of “recklessness” rejected in State v. Gamble, 154 Wn.2d 457, 114 P.3d 646 (2005).7 In both Pettus and Pastrana, the defendants fired shots from one moving vehicle into another, resulting in a death. Pastrana, 94 Wn. App. at 469; Pettus, 89 Wn. App. at 692. In both cases, the defendants claimed to have been aiming at something other than a person. Pastrana, 94 Wn. App. at 471; Pettus, 89 Wn. App. at 693. And in both cases, the court affirmed the trial court’s decision that the evidence supported only one inference: that the defendant, manifesting extreme indifference, created a grave risk of death. Pastrana, 94 Wn. App. at 471 (“Pastrana acted with much more than mere recklessness. . . .[H]e manifested an extreme indifference to human life and created a grave risk of death — conduct which fits only the first-degree murder statute, not manslaughter.”); Pettus, 89 Wn. App. at 700 (“[the] evidence, if believed, established that Pettus’s conduct was extremely indifferent to the lives of people in the vicinity and placed them in great danger”).
*750¶35 This reasoning survives Gamble, which holds only that the “wrongful act” referenced in Washington’s recklessness statute (RCW 9A.08.010(1)(c)) is a placeholder, standing in for the offense in question in any given prosecution. 154 Wn.2d at 467-68. In fact, Gamble militates even more strongly against Henderson’s entitlement to an instruction on the lesser, because Gamble means that we must compare offenses so similar that it is virtually impossible to find the elements of the lesser (“disregard” of “substantial risk” of a homicide, RCW 9A.08.010(1)(c)) to the exclusion of the greater (“extreme indifference” that creates a “grave risk of death,” RCW 9A.32.030(1)(b)).
¶36 I agree with the majority that the trial court’s determination under Workman’s factual prong is — as the name suggests — highly fact-specific. In Pettus, for example, the court considered the range of the weapon fired, the presence of other people in the general area, and the difficulty of controlling a weapon while riding in a moving car. 89 Wn. App. at 700. In Pastrana, the court reasoned that, because it was dark, the defendant did not know how many people might be in the car he was shooting at. 94 Wn. App. at 471. Neither case is directly analogous to Henderson’s, but both certainly support the trial court’s decision in this case.
¶37 Defense counsel makes no attempt to distinguish Pettus and Pastrana on their facts, instead arguing only that those decisions were abrogated by Gamble. Suppl. Br. of Resp’t (No. 90154-6) at 6-8. I disagree. Shooting toward even one person outside a house can certainly constitute indifference to a grave risk of death. Here, we have two people.
¶38 For these reasons, the trial court did not abuse its discretion by relying on Pettus and Pastrana to deny the requested manslaughter instruction. See State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998) (trial court’s refusal to instruct jury on lesser included offense is reviewed for abuse of discretion if based on factual determi*751nation). Viewed in the light most favorable to Henderson, the evidence showed that the shooter pointed his gun in the direction of a yard where people were standing and then fired several times. That there might have been only two people in the yard does not seem to me to make the shooting any less an expression of indifference to human life.
¶39 I would reverse the Court of Appeals’ ruling that Henderson was entitled to a manslaughter instruction and remand to that court for resolution of Henderson’s other claim. I therefore respectfully dissent.
González and Yu, JJ., concur with Gordon McCloud, J.Pet. for Review at 3 (footnote omitted) (citing Report of Proceedings 233, 237-38, 636, 686, 856, 938, 1024); see also Suppl. Br. of Resp’t (No. 42603-0-II) at 5 (“Defendant stood in front of a house where he knew there was a crowded party. He rapidly fired multiple shots indiscriminately into the crowd.” (footnote and citations omitted) (citing Report of Proceedings at 201, 345, 406-08, 564)).
State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
The majority asserts that I “conclude! ] that no rational jury could ever have found manslaughter” in this case. Majority at 746. This is incorrect. I conclude that no rational jury could find that the defendant committed manslaughter to the exclusion of murder by reckless indifference.
These are the distinctions we must address, because, as just explained, our court has stated that a defendant is not entitled to an instruction on a lesser included offense unless the evidence raises an inference that the defendant *749committed the lesser offense “to the exclusion of the charged offense.” Fernandez-Medina, 141 Wn.2d at 455. I infer some discomfort with that standard in the majority’s opinion. I share that discomfort; indeed, it arguably stands in tension with the statutory directive that “[w]hen a crime has been proven against a person, and there exists a reasonable doubt as to which of two or more degrees he or she is guilty, he or she shall be convicted only of the lowest degree.” RCW 9A.04.100(2) (emphasis added). But the parties in this case have not argued that issue.
The majority is correct that Pettus and Pastrana also distinguish between “ ‘a substantial risk of some wrongful act’ ” — the definition of “recklessness” abrogated in Gamble — and a “ ‘ “grave risk of death” ’ ” — an element of murder by extreme indifference. Majority at 744-45 (quoting Pettus, 89 Wn. App. at 699-700; accord Pastrana, 94 Wn. App. at 471). But those cases affirmatively held that a defendant who shoots in the direction of other people manifests an extreme indifference and creates a grave risk of death. Pastrana, 94 Wn. App. at 471; Pettus, 89 Wn. App. at 700. That holding, which unavoidably implies that such a defendant does not merely disregard a substantial risk of death, did not depend on the definition of “recklessness” abrogated in Gamble. I believe that holding was correct, and thus I would affirm the trial court’s decision in this case.