dissenting:
These cases require us to revisit the question of the appropriate remedy for the constitutional violation inherent in section 18-3-203, 8B C.R.S. (1986), the second degree assault statute under which the defendants are charged. The majority correctly notes the applicability of this court’s recent deci*488sion in People v. Duc Nguyen, 900 P.2d 37 (Colo.1995), to the issues in the present eases. In Duc Nguyen, we held that section 18-3-203 “violates equal protection guarantees because it imposes a harsher penalty for less serious criminal conduct than does the first degree assault statute.” Id. at 40. However, the determinative issue, identical in Duc Nguyen and the present cases, is not the conceded unconstitutionality of the statute but rather the appropriate approach to remedy this constitutional violation. In Due Nguyen, this court determined that the statute could be made constitutional by (1) severing the mandatory crime of violence sentencing provision under section 18-3-203(2)(c) as it applies to attempted second degree assault under section 18 — 3—203(l)(b), and (2) remanding the case for sentencing of the defendant for commission of a class .4 felony. I dissented to the court’s opinion in Duc Nguyen, 900 P.2d at 42 (Lohr, J., dissenting) and, because I continue to believe this remedy to be inappropriate, I respectfully dissent from the majority’s holding in the present eases as well.
As I noted in Due Nguyen, the majority’s choice of remedies subjects less culpable criminal behavior — i.e., attempted second degree assault requiring only an attempt to cause bodily injury — to potential punishment equal to that assessable for acts involving a higher level of culpability — i.e., attempted first degree assault requiring an attempt to cause serious bodily injury. 900 P.2d at 44 (Lohr, J., dissenting). This system does not produce a just and equitable result because it fails to effectuate the legislature’s explicit distinction between bodily injury and serious bodily injury. See id. at 44-45 (contrasting the definitions of “bodily injury” and “serious bodily injury” in section 18-1-901, 8B C.R.S. (1986 & 1994 Supp.)). To avoid this inequity, I would sever the attempt language from section 18-3-203(l)(b) so that attempted second degree assault would be punishable under the general attempt statute, section 18-2-101, 8B C.R.S. (1986 & 1995 Supp.). Pursuant to this statutory structure, attempted second degree assault would be punishable as a class 5 felony rather than a class 4 felony. This distinction between the punishment applicable to first and second degree assault preserves the legislative differentiation between bodily injury and serious bodily injury by aligning the severity of punishment with the severity of harm attempted. Thus, I would remand to the trial court for reinstatement of the charges as class 5 felonies punishable under section 18-2-101.
For the above reasons, which are explained in more detail in my dissenting opinion in Due Nguyen, I respectfully dissent from the majority’s decision to remand with instructions to reinstate the second degree assault charges .as class 4 felonies.
ERICKSON and KIRSHBAUM, JJ., join in this dissent.