(dissenting) — Mr. Percer incorrectly asserts State v. Schwab, 98 Wn. App. 179, 988 P.2d 1045 (1999) represents a significant change of law justifying his petition. As the majority points out, Schwab does not present any new legal principle that would necessarily change our earlier decision in State v. Percer, No. 15553-6-III, 1997 Wash. App. LEXIS 1727, 1997 WL 642320 (Wash. Ct. App. Oct. 14, 1997), review denied, 134 Wn.2d 1017 (1998). We should decline review. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999). In any event, as discussed next, the Schwab reasoning is inapplicable here, because in Schwab the death was addressed purely within the confines and context of the homicide laws of chapter 9A. 32 RCW.
In deciding Mr. Percer’s direct appeal, we were not unconsciously wrong, as is implicit in the majority’s holding today. No double jeopardy conflict exists because the gravamen of Mr. Percer’s vehicular homicide conviction is his proscribed driving conduct under Title 46 RCW, driving resulting in death. On the other hand, the gravamen of Mr. Percer’s felony murder conviction under chapter 9A. 32 RCW is his taking a motor vehicle without the owner’s permission contrary to RCW 9A.56.070, theft resulting in death. Clearly the Legislature proscribed both types of disparate conduct. The Legislature merely defined the seriousness of each offense based upon resulting death. Thus, because the legislative intent is clear, we need not resort to any legislative history in resolving this dispute.
*851Accordingly, because Mr. Percer does not present grounds for us to reconsider the exact issues presented and rejected in his direct appeal, and his claim of error lacks merit, I respectfully dissent.