(dissenting)—I would have this court adhere to its decision in the similar case of State v. Smith, 12 Wn. App. 720, 531 P.2d 843 (1975), affd, 88 Wn.2d 127, 559 P.2d 970, cert, denied, 434 U.S. 876 (1977). Consistent with that holding, I believe that where the evidence shows that death was caused slowly by manual strangulation in circumstances such as we have here, a rational trier of fact could be convinced beyond a reasonable doubt that the perpetrator intentionally caused death after deliberation and premeditation.
Contrary to the majority view, the law on this issue is unclear and unsettled. Washington case law and statutes do not provide a precise definition of premeditation, forcing us to examine the nature of the crime and the relationship between the concepts of intent and premeditation. "Premeditated" encompasses the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short. State v. Brooks, 97 Wn.2d 873, 651 P.2d 217 (1982). RCW 9A.32.020(1) provides:
(1) As used in this chapter, the premeditation required in order to support a conviction of the crime of murder in the first degree must involve more than a moment in point of time.
(Italics mine.)
Premeditation may be proved by circumstantial evidence, where the inferences drawn by the jury from that evidence are reasonable. State v. Luoma, 88 Wn.2d 28, 558 P.2d 756 (1977). A jury may infer premeditation from the facts of *561the crime when the defendant had an appreciable time in which to deliberate the intent to kill, though such time may be very short. State v. Smith, supra.
Time, then, may literally be of the essence. A number of cases have held that the element of premeditation is properly inferable from evidence of the lapse of time to death. State v. Griffith, 91 Wn.2d 572, 589 P.2d 799 (1979); State v. Luoma, supra; State v. Harris, 62 Wn.2d 858, 385 P.2d 18 (1963); State v. Gaines, 144 Wash. 446, 258 P. 508 (1927), cert, denied, 277 U.S. 81 (1928).
In State v. Griffith, supra, the evidence revealed that a group of children playing basketball bounced a ball against the outside wall of defendant's home. The defendant, apparently upset by this, engaged in some harsh words with the children and took their ball. Shortly afterward, two men, strangers to the defendant, went to defendant's home to ask that the ball be returned. During a discussion on the porch, the defendant produced a gun and shot one of the men. The court held that the evidence supported the verdict of premeditated murder. It stated:
Although the period of time in which these events transpired was approximately 5 minutes, there was sufficient evidence from which the jury could have found that the defendant formulated an intent and deliberated upon it prior to the shooting. Premeditation is a question for the jury. . .
Griffith, 91 Wn.2d at 577.
In State v. Luoma, supra, there was no evidence of planning independent of the crime itself. However, the court held that the fact that the murderer had to transport the victim 5 miles, take her down a steep bank, place her there and crush her head with a large rock was sufficient evidence to permit the jury to find that an appreciable period of time elapsed for the defendant to have deliberated. The court stated:
Although there was no direct proof of intent, premeditation may still be found where intent is logically inferred from the facts of the crime . . . [t]he jury could . . . *562conclude that the death was not the result of an impulsive, spontaneous act.
Luoma, 88 Wn.2d at 33-34. This suggests, contrary to the majority's position at page 557, that premeditation can be inferred solely from the method of effecting death.
In State v. Harris, 62 Wn.2d at 868, our Supreme Court found the evidence of premeditation to be sufficient in a case where the victim was struck on the head several times with a blunt instrument, struck in the face, and then strangled with a vacuum cleaner cord. The strangling was the immediate cause of death. The court held that the jury could infer premeditation from the circumstances of the killing even though the killing was unwitnessed and defendant did not testify. The "appreciable period" was the time that "elapsed between the first blow of the beating and the choking [causing death] to permit the perpetrator to form an intent to kill ..." An earlier case, State v. Gaines, 144 Wash, at 467, involved a death caused by a similar beating and choking. The court held that: "It is true that proof of the fact of killing, alone, does not raise a presumption of premeditation or deliberation, but premeditation or deliberation may be inferred from the circumstances of the killing."
The majority seems to suggest that for a jury to find premeditation or deliberation it must have preceded the formation of intent to kill. In other words, it seems to hold, if the intent to kill is formed impulsively there can be no premeditation. Neither logic nor case law leads me to concur with that conclusion. The fact of deliberation for the requisite time is the key ingredient of premeditation. If there is opportunity for deliberation before death is caused, the jury may find that the death is not the result of an impulsive act. See State v. Griffith, supra. It is not very productive, therefore, to engage in analysis or speculation over which occurred first, formation of intent to kill or reflection on that intent. Common sense suggests that premeditation exists as much if one is reflecting on an already formed intent to kill as it does when one is deliberating *563whether or not to kill. In either case, reflection and deliberation are present, if the deliberation is for an appreciable time. If the killing follows this process of reflection, then it is a premeditated killing.
In this case, uncontroverted evidence was presented to the jury that it takes 3 to 5 minutes to effect death by manual strangulation. The jury was, therefore, justified in concluding that an appreciable period of time elapsed from the time the defendant first placed his hand or hands on the victim's throat, regardless of what his intent might then have been, until the act of strangulation caused her death. A jury would further be justified in concluding from the circumstances of this case, as it must have done, that the defendant would necessarily have his attention riveted during this period of time on what effect the application of pressure might have on the windpipe of this "child-like" woman. It is significant that the defendant was a large man and there was little sign of struggle at the scene of the killing. These facts indicate that the death was not the result of an impulsive or spontaneous act flowing from an attempt to overcome resistance or to effect sexual contact. In short, the evidence of time lapse and of the crime scene compels the conclusion that the defendant had ample opportunity to deliberate and premeditate on what he intended to achieve by choking his victim. The fact that he ultimately caused her death by strangulation justifies the conclusion that he intended to kill after reflecting on the deed for the requisite time.
I part with the majority's conclusion that premeditation is not inferable in a case such as this where the evidence so strongly establishes a period of time for deliberation. I would agree that although premeditation cannot automatically be inferred from the elapsed time, the jury should be permitted to examine the evidence to determine what it tells them about both intent and premeditation. The majority suggests that evidence of an appreciable time alone is not enough to establish deliberation. While I do not concede that the evidence tending to prove or show pre*564meditation here is limited to time, I believe this conclusion is contrary to case law discussed above. It is particularly contrary to State v. Smith, supra, the case that the majority would overrule. In Smith, a case which lacked "classic" evidence of premeditation, such as planning or lying in wait, the court held that the defendant's act of grabbing his son by the neck and holding him under water long enough to drown him provided sufficient evidence of intent to kill and premeditation. The majority attempts to distinguish the present case by stating that in Smith there was evidence of motive and preparation. There was none. The court stated:
Although no definite motive was proven, the jury was presented with substantial evidence of the existence of premeditation. . . .
(Italics mine.) Smith, 12 Wn. App. at 732. The evidence of premeditation in Smith consisted primarily of the fact that the defendant had taken his son out at midnight and drowned him. Those facts alone caused the court to observe that an "appreciable period of time did elapse."
The only other evidence discussed by the court in Smith in reference to premeditation, other than the time involved in drowning, was the fact that the defendant had discussed separation from his wife prior to the murder. Though they had decided not to separate, it was agreed that if they did, she would have custody of their children, including the victim. Those facts provide less evidence of motive than the facts surrounding this case. It is difficult to believe that a person could be motivated to kill his child because he feared losing custody or wanted to hurt his wife. It is easier to believe that, as here, the defendant chose to kill in order to silence his victim and conceal a rape.
I am led to conclude that the time that elapses from the commencement of the act which causes death to the moment of death may be sufficient to allow a jury to find deliberation, notwithstanding the absence of evidence of planning before the commencement of the act causing death. I would submit that this has been the rule in this *565state and is a rule in harmony with our statute. RCW 9A.32.020U).
The majority seems concerned that permitting the jury to infer premeditation in a case such as this would allow the jury to focus on the method of the killing to the exclusion of evidence concerning the mental process involved in the element of premeditation. I disagree. I do not suggest that a jury should be allowed to exclude evidence of mental process. On the other hand, they should not be precluded from considering the method of killing if its very nature provides clues to the mental process of the perpetrator.
I can only assume the Legislature must have intended by distinguishing between first and second degree murder, establishing greater penalties for first degree murder, to discourage killing when one has an opportunity to think about it. The time period during which one continuously exerts sufficient pressure on a victim's throat to block breathing which, in turn, causes unconsciousness and then death, affords a person a significant opportunity for a change of heart. If a person consciously rejects the opportunity to lessen the pressure in that period, the person may be found to have deliberated. The more time required, the greater the probability that even a slow thinker had time to reflect.
The majority correctly observes that in this case there is no evidence of prior planning. The defendant did not testify at trial and thus the jury did not know his mental state except as he revealed it to investigating officers. What a person thinks or intends is always difficult to determine in any case because we cannot pry into the mind. However, what a person does is often the best gauge of his or her thinking. The fact finder is called upon to determine whether a defendant premeditated from the facts surrounding the killing. Here, the jury concluded, as well they might, that this defendant took this mentally retarded young woman to a secluded area of Clallam County, raped her, strangled her with little difficulty for 3 to 5 minutes until she was dead, and then proceeded to bite her dead *566body. From this evidence a rational trier of fact could conclude beyond a reasonable doubt that the defendant was capable of reflecting and did reflect on his deed sufficiently to cause him to be guilty of premeditated murder in the first degree. The evidence supports the verdict and I would affirm.
Reconsideration denied June 10, 1985.
Review granted by Supreme Court September 6, 1985.