dissenting;
This case requires us to determine the appropriate remedy for the equal protection violation that results from a statutory scheme that authorizes a more severe sentence for attempt to cause bodily injury with a deadly weapon than for attempt to cause serious bodily injury with a deadly weapon. The majority elects a remedy that classifies both of these crimes as class 4 felonies and therefore results in the same authorized sentencing range for each. In order to recognize that attempt to cause serious bodily injury with a deadly weapon is a more serious crime than attempt to commit bodily injury with a deadly weapon, I would elect a remedy that categorizes the former offense as a class 4 felony and the latter as a class 5 felony. Accordingly, I respectfully dissent to the majority opinion.
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The majority opinion adequately sets forth the facts and procedural background of this case, and I will not repeat them.
The defendant was convicted of two counts of second degree assault under the provision of section 18-3-203 proscribing an attempt to cause bodily injury to another person by means of a deadly weapon. § 18-3-203(l)(b), 8B C.R.S. (1986). This offense, absent heat of passion, constitutes a class 4 felony, § 18-3-203(2)(b), 8B C.R.S. (1986), and requires sentencing under the mandatory crime of violence provision prescribed in section 16-11-309, 8A C.R.S. (1986 & 1994 Supp.). See § 18-3-203(2)(c), 8B C.R.S. (1994 Supp.). As the majority notes, the sentencing range for such an offense is five to sixteen years. Maj. op. at 40.
The first degree assault statute proscribes, among other conduct, causing serious bodily injury to another person by means of a deadly weapon. § 18-3-202(l)(a), 8B C.R.S. (1986) (emphasis added). Absent heat of passion, first degree assault is a class 3 felony. § 18-3-202(2)(b), 8B C.R.S. (1986). Attempt to commit first degree assault is proscribed under the general criminal attempt statute, § 18-2-101, 8B C.R.S. (1986 & 1994 Supp.), and is a class 4 felony, § 18-2-101(4). The sentencing range for attempt to commit first degree assault is two to eight years. See maj. op. at 40.
As the majority acknowledges, “[ujnder this statutory scheme, the sentencing range for attempt to commit serious bodily injury with a deadly weapon (two to eight years) is less than the range for attempt to commit bodily injury with a deadly weapon (five to sixteen years).” Maj. op. at 40. I agree with the majority — and the prosecution concedes — that for this reason, section' 18-3-203(l)(b) violates the equal protection guarantees of both the United States Constitution and the Colorado Constitution because it authorizes imposition of a more severe penalty for conduct that is less serious than conduct constituting attempted first degree assault.
II.
As a remedy for the equal protection violation, the trial court vacated the defendant’s two convictions for second degree assault that were based on attempt. The prosecution asserts, and the defendant concedes, that this remedy was improper. Our task is to determine the provision of the second degree sexual assault statute that must be severed to cure the constitutional defect, and to direct resentencing as appropriate.1
The relevant portions of the second degree assault statute are as follows:
(1) A person commits the crime of assault in the second degree if:
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(b) With intent to cause bodily injury to another person, he causes or attempts to cause such injury to any person by means of a deadly weapon;
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(2)(b) If assault in the second degree is committed without [heat of passion], it is a class k felony.
(c) If a defendant is convicted of assault in the second degree pursuant to paragraph (a), (b), (c), (d), or (g) of subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of section 16-11-209, C.R.S.
§ 18-3-203, 8B C.R.S. (1986 & 1994 Supp.) (emphasis added). Section 16-11-309, 8A C.R.S. (1994 Supp.), to which reference is made in section 18-3-203(2)(c), provides, as relevant here:
Any person convicted of a crime of violence shall be sentenced pursuant to section 18-1-106(9), C.R.S., to a term of incarceration *44of at least the midpoint in the presumptive range, but not more than twice the maximum term, provided for such offense in section 18-l-105(l)(a), C.R.S.
The majority strikes the crime of violence sentencing provision in section IS — 3—203(2)(c) as it applies to attempts to cause bodily injury under section 18-3-203(l)(b), thus making a conviction for second degree assault based on such conduct a class 4 felony not subject to enhanced sentencing as a crime of violence. See maj. op. at 41, 42. The remedy I would adopt is to strike the words “or attempts to cause” from section 18-3-203(l)(b). An attempt to cause bodily injury would then be punishable under the general attempt statute, § 18-2-101, 8B C.R.S. (1986 & 1994 Supp.), and would constitute a class 5 felony under subsection (4) of that latter statute, which makes criminal attempt to commit a class 4 felony — here, second degree assault — a class 5 felony. See maj. op. at 40 (quoting from § 18-2-101).
We have recognized that it is within the legislative prerogative to determine that different crimes or crimes involving alternative culpability requirements are equally serious and can be placed in the same felony class without violating the constitutional right to equal protection. People v. Cowden, 735 P.2d 199, 201 (Colo.1987); People v. Aragon, 653 P.2d 715, 718 (Colo.1982).2 In the present case, however, there is no legislative determination that second degree assault involving attempt to cause bodily injury by means of a deadly weapon and attempt to commit first degree assault, which involves attempt to cause serious bodily injury by such means are equally reprehensible. In fact, as earlier discussed, the legislature prescribed a more severe sentencing range for the less serious criminal conduct, thereby creating the very equal protection violation we are called upon to remedy.3
Moreover, the difference between the criminal conduct involved in the second degree assault offense at issue here and in attempted first degree assault is limited to the seriousness of the result that the actor intends and attempts. In order to commit second degree assault under section 18-3-203(l)(b), the actor must intend and attempt to cause bodily injury. In order to commit attempted first degree assault under section 18-3-202 and 18-2-101 the actor must intend and attempt to cause serious bodily injury. The only distinction between the two crimes is the severity of the intended and attempted bodily injury to the victim. See, e.g., People v. Martinez, 189 Colo. 408, 411, 540 P.2d 1091, 1094 (1975) (differentiating between first and second degree assault by recognizing that “[t]he basic element is injury to a person’s body, the difference being one of the degree of the injury”). All the other elements of the two offenses are the same.
The legislature has defined serious bodily injury to encompass consequences much more severe than bodily injury. The terms are defined as follows:
(c) “Bodily injury” means physical pain, illness, or any impairment of physical or mental condition.
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(p) “Serious bodily injury” means bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.
§ 18-1-901, 8B C.R.S. (1986 & Supp.1994).
We have not been called upon to determine whether two crimes identically defined except for the inclusion of bodily injury as an element in one and serious bodily injury as *45an element in another can be assigned the same felony class, so that prescribed sentencing ranges are the same, without violating equal protection.4 The majority discovers no equal protection defect in such a scheme. I do not find it necessary to reach this issue.
Even assuming that the remedy selected by the majority is constitutionally sufficient, I would not adopt it. In order to select a remedy that achieves a just and reasonable result, there should be a differentiation between the penalties for these two crimes commensurate in some degree with the differences in the severity of the intended and attempted bodily injury that is the sole feature distinguishing them. See Smith, 852 P.2d at 422 (differences in sentencing classifications for crimes must be rationally based upon the variety of evil proscribed); People v. Torres, 848 P.2d 911, 913 (Colo.1993) (classifications of persons under criminal law must be. reasonable and not arbitrary); People v. Fuller, 791 P.2d 702, 705 (Colo.1990) (statutory classifications of crimes must be based on substantial differences and reasonably related to purposes of legislation); § 18-l-102(l)(c), 8B C.R.S. (1986) (Colorado Criminal Code is to be construed “[t]o differentiate on reasonable grounds between serious and minor offenses, and prescribe penalties which are proportionate to the seriousness of offenses-”). Cf. § 2^4-201(l)(c), IB C.R.S. (1980) (in enacting a statute it is assumed that a just and reasonable result is intended); § 2-4-203(l)(e), IB C.R.S. (1980) (in construing an ambiguous statute, a court may consider the consequences of a particular construction).
In order to effectuate the legislature’s clear differentiation between serious bodily injury and bodily injury and to effect a just and reasonable result consistent with that differentiation, I would strike the phrase “or attempts to cause” from section 18-3-203(l)(b), which would reduce the second degree assault convictions that are based on attempt from class 4 felonies to class 5 felonies by operation of section 18-2-101, the criminal attempt statute. I would then remand the case to the trial court with directions to resentence the defendant within the class 5 felony range on each of his two second degree assault convictions that are based on attempt. Accordingly, I respectfully dissent to the majority opinion.
ERICKSON and KIRSHBAUM, JJ., join in this dissent.. In determining the severability of a statutory provision in the absence of specific language in the statute itself, we are guided by § 2-4 — 204, IB C.R.S. (1980), which states:
If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid, unless it appears to the court that the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court determines that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
The parties agree, as does the majority and as do I, that severance is an appropriate remedy in this case. It is the identification of the language to be severed that is at issue.
. This legislative discretion is tempered, however, by the principle that “[e]qual protection requires that statutory classifications of crimes be based on differences that are real in fact and are reasonably related to the purposes of the legislation.” People v. Weller, 679 P.2d 1077, 1082 (Colo.1984); accord People v. Torres, 848 P.2d 911, 913-14 (Colo.1993); People v. Fuller, 791 P.2d 702, 705 (Colo.1990). See maj. op. at 39.
. Contrary to the majority, I do not find legislative intent concerning the sentencing range to be helpful. See maj. op. at 42. Certainly the legislature intended to adopt the sentencing scheme that we find to violate equal protection. The issue is the remedy to be chosen when the legislative intent cannot be implemented because of equal protection principles.
. In Smith v. People, 852 P.2d 420, 422 (Colo.1993), we struck down a sentencing provision requiring an enhanced sentence for intentionally causing bodily injury but not for intentionally causing serious bodily injury, and classifying both offenses as class 4 felonies. We did not address the constitutional sufficiency of the statutory provisions remaining after striking the enhancement provision, but simply remanded for resentencing. Smith, therefore, is not dispositive of the equal protection sufficiency of such a scheme, and it presented no issue concerning selection between alternate provisions for severance in order to maintain constitutional sufficiency. Therefore, I do not ascribe to Smith the same significance as does the majority. See maj. op. at 41.
Likewise, in People v. Weller, 679 P.2d 1077, 1082-83 (Colo.1984), we upheld § 18-3-203(l)(b) against an equal protection attack. Finding no equal protection violation, we were not required to adopt a remedy. The equal protection attack in the present case, however, was successful and the issue is the remedy to be adopted. Contrary to the majority, I do not find Weller to be of assistance in resolving this question. See maj. op. at 41-42.