(dissenting) — To me it is clear that the legislature, in enacting the laws which implement Initiative No. 316, intended that the special sentencing procedure set forth in RCW 10.94 should be invoked in every case where a defendant is charged with first degree murder, provided the prosecutor files a notice of intent to request such a proceeding. I think it is also plain that the legislature did not intend to permit a waiver of jury trial in such cases.
There is no constitutional right to plead guilty in a criminal case. United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968). The United States Supreme Court, in that case, held that an act of Congress which permitted a defendant to escape the death penalty by pleading guilty (as do the statutes of this state, according to the majority opinions) encouraged the use of such pleas and consequently chilled the exercise of a defendant's right to contest his guilt. A defendant, though innocent, might well choose to plead guilty rather than risk a guilty verdict and the death penalty. The court indicated that the evil could be avoided by legislative provisions which either left the choice of life imprisonment or capital punishment to a jury in every case regardless of how the case was tried, or which required that all capital cases be tried to a jury.3
*26Under the holding of the United States Supreme Court in Jackson, it was within the power of the legislature to require a jury trial in every capital case. It was not within its power to enact a law which would permit a defendant to escape the death penalty by pleading guilty.
The primary goal in construing statutes is to ascertain the legislative intent. In doing so, first consideration is given to the context and subject matter of the statute itself. It should be considered as a whole. If it is susceptible to more than one construction, it should be given that construction which will carry out its objective. Anderson v. O'Brien, 84 Wn.2d 64, 524 P.2d 390 (1974); Miller v. Paul Revere Life Ins. Co., 81 Wn.2d 302, 501 P.2d 1063 (1972).
It is evident on the face of the act under scrutiny here that the legislature was striving to draft a law which would meet constitutional requirements. And yet the majority has, by ignoring significant language in that legislation, construed it to have an effect which is invalid. At the same time, assuming the posture of the proverbial ostrich, it would have us believe it is unaware that it has rendered the law unconstitutional.
It is presumed that the legislature was aware of decisions of the United States Supreme Court, as well as this court; and in fact the provisions of RCW 10.94 reflect such an awareness and an endeavor to meet constitutional standards which had been laid down by the high court. The legislature must have been aware, therefore, that it could not validly permit a defendant in an aggravated murder case to escape exposure to the death penalty simply by pleading guilty.
*27It is the rule, furthermore, that where a statute is open to more than one interpretation, and one would render it invalid while the other would render it constitutional, the latter construction should prevail. State v. Dixon, 78 Wn.2d 796, 479 P.2d 931 (1971).
It was the expressed legislative intent that, in all first degree murder cases where the prosecutor has reason to believe that aggravating circumstances were present, he is entitled to seek the death penalty by requesting a special proceeding. RCW 10.94.010 provides:
When a defendant is charged with the crime of murder in the first degree as defined in RCW 9A.32.030(l)(a), the prosecuting attorney or the prosecuting attorney's desig-nee shall file a written notice of intention to request a proceeding to determine whether or not the death penalty should be imposed when the prosecution has reason to believe that one or more aggravating circumstances, as set forth in RCW 9A.32.045 as now or hereafter amended, was present and the prosecution intends to prove the presence of such circumstance or circumstances in a special sentencing proceeding under RCW 10.94.020.
There is no language in RCW 10.94.010 restricting its application to cases where the accused has pleaded not guilty. RCW 10.94.020(1) provides that where notice of intention to request the death penalty has been filed, a special sentencing proceeding shall be held if the defendant is found guilty of first degree murder. Subsection (2) provides that the judge shall reconvene the same trial jury to determine the presence of aggravating and mitigating circumstances, and among the matters to be considered is the strength of the evidence of guilt "at the trial." It is true that the legislature in these sections has not expressly declared that all capital cases shall be tried to a jury, but the conclusion is inescapable if the language is given its fair import.
The prosecutor is authorized to request the death penalty in any case where a defendant is charged with murder in the first degree. And where he has made such a request, the same jury which tried the case decides the punishment. *28Obviously the legislature intended that all such cases should be tried to a jury, and the trial court readily perceived this intention.
The statutes relating to the death penalty, while not entirely free of ambiguity, reveal a legislative intent that the prosecutor should seek the death penalty in all cases of aggravated murder. The statute regulating the procedure was enacted to implement an initiative of the people and certainly there is nothing in that initiative (now codified in RCW 9A.32.045-.047) which reflects an intent that exposure to the death penalty should depend upon the kind of plea entered.
The majority opinion finds a "right" to plead guilty in CrR 4.2(a). This rule does not purport to specify the cases in which various pleas can be accepted, but merely recognizes the kinds of pleas which are appropriate. It has always existed side by side with RCW 10.01.060, which limits the right to plead guilty in capital cases. In any event, if RCW 10.94 was intended to require a jury trial in every capital case, as I believe it does, being a special and later law, it supersedes the procedural rule of this court, which merely applies to pleas in general. In passing I should say that I find it bizarre that a court rule should be utilized to aid a statutory construction which renders an act unconstitutional.
To the majority it appears that the legislature did not anticipate the possibility that a defendant might plead guilty in a capital case. This view is not supported by the legislative history of the act, cited by amicus and pursued in the specially concurring opinion.4 That history shows *29that the legislation as originally proposed made allowance for such a plea, but this provision was omitted from later revisions. This action, like the language of the statute itself, is consistent with a legislative understanding that such a plea is not appropriate in a case where the death penalty may be imposed.
The majority suggests no legislative purpose which would be served by a law which permits a defendant to escape the death penalty by pleading guilty. It in fact concedes that the legislature never intended to permit such a plea. It is conceivable, though highly improbable, that the legislature might find the public interest so well served by a guilty *30plea, which spares the public the expense and uncertainty of a trial, that the encouragement of such pleas far outweighs any concern with the penalty to be imposed for the offense committed, no matter how heinous. Had the legislature embraced this notion, it most surely would have expressed in words its intent to exclude those who plead guilty and would not have left that intent to be gleaned by implication from its silence upon the subject.
It is apparent that the legislature gave careful consideration to the mitigating circumstances which might warrant leniency. These are listed in RCW 9A.32.045; and these are the mitigating circumstances which the jury may consider under RCW 10.94.020(4). A plea of guilty is not among them, and in fact they all relate to circumstances existing at the time of the crime.
It is evident that the legislature did not consider a guilty plea to be a circumstance which, because of its mitigating character, should affect the penalty decision. That being the case, it is hardly conceivable that the legislature intended to permit an accused to escape all risk of the extreme penalty by simply pleading guilty. Provision of such a loophole would frustrate the entire purpose of the statute, which is to demand the imposition of this most severe punishment in certain cases and to permit it in no others. The cases where the penalty is demanded are those in which the guilt of the defendant was proven with clear certainty, where there were aggravating circumstances and insufficient mitigating circumstances to warrant leniency, and where the jury can be convinced that the defendant will be a continuing threat to society. RCW 10.94.020.
Were it open to a defendant to escape the death penalty by pleading guilty, it is obvious that the very class for whom the penalty is reserved would be the first to utilize the plea. The construction placed upon the act by the majority is one so unlikely to have been intended by the legislature that it enters the realm of absurdity. It is a well established principle of statutory construction that the law favors a rational and sensible construction. 2A C. Sands, *31Sutherland's Statutes and Statutory Construction § 45.12 (4th ed. 1973). Had this court been drafting the legislation, it might perhaps have found more’ explicit language to define its intent. Nevertheless, it is obvious that the legislature intended the sentencing proceedings to apply in all cases where a proper request has been made. The court should be governed by that intent. Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972).
I would affirm.
Hicks, J., concurs with Rosellini, J.
The court cited RCW 9.48.030, 10.01.060, 10.49.010 (1956) as illustrative of the first type of legislative action. RCW 9.48.030 was repealed by Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.92.010 and by Laws of 1975, 2d Ex. Sess., ch. 38, § 19, effective July 1,1976. It provided that in every trial for murder in the first degree, the jury should, if it found the defendant guilty, also find a special verdict as to whether or not the death penalty should be imposed. This provision, like the present law, manifested an intent that all capital cases should be tried to a jury.' *26Capital punishment was abolished at the time the new criminal code, RCW 9A, was adopted in 1975, but the legislature neglected to delete the provision of RCW 10.01.060 which denies a right to waive jury trial in capital cases. This was evidently an oversight. RCW 10.49.010, enacted in 1881 and never amended, provides for the impaneling of a jury to determine the degree of murder and punishment therefor in every case where the defendant pleads guilty to that crime.
It is with some reluctance that I cite the legislative history, preferring to rest my interpretation upon the language of the statute itself. Amicus curiae thinks that the legislature removed all reference to guilty pleas because it intended to allow such pleas as a means of escaping the death penalty. To me the omission reveals precisely the opposite intent. This divergence illustrates the precarious footing which legislative history offers as a base for interpreting statutes.
The paucity of information available in the legislative journals and printed bills with respect to legislative intent makes any conclusions from such evidence *29speculative. Professor C. Sands, in 2A Sutherland's Statutes and Statutory Construction § 48.02 (4th ed. 1973), is openly critical of the current tendency to rely upon judicial interpretation of legislative history as a means of discovering legislative intent.
In United States v. Public Utils. Comm'n, 345 U.S. 295, 97 L. Ed. 1020, 73 S. Ct. 706 (1953), Justice Robert Jackson (concurring) said, in support of a preference for making decisions "by analysis of the statute instead of by psychoanalysis of Congress":
When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history should have made on them. . . . That process seems to me not interpretation of a statute but creation of a statute.
345 U.S. at 319, cited in C. Sands, supra at 186-87.
It is not a proper judicial function to speculate upon and attribute controlling meaning to an unexplained change in legislative drafts that is just as likely to have occurred through happenstance. Seldom is there a reliable explanation for changes in legislative drafts available. Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 536 P.2d 157 (1975).
To view an act in the light of other legislation upon' the same subject, both past and present, is a valid extrinsic aid to construction. Acts of the legislature express the majority will, attested to in the manner prescribed by the constitution. It may reasonably be presumed that the legislature was aware of the provisions of such enactments. But in view of the fact that hundreds, and sometimes thousands, of bills are introduced in each session of the legislature, it is totally unrealistic to assume that those which are not passed have received the careful consideration of its members.
It should be obvious, therefore, that extreme caution should be used in resorting to legislative history to determine the meaning of statutes. Here, a search of that history has revealed nothing which is contrary to the intent which is reflected in the language used by the legislature. At the same time it has furnished scant illumination of the question before the court.