(dissenting)—I must dissent for the reason that former RCW 9.92.080 as applied in the instant case has denied petitioner equal protection of the laws. That statute has lengthened, upon a completely arbitrary basis, next discussed, the time petitioner must serve in prison before being eligible for parole by almost 6 years.
The text of former RCW 9.92.080 is set out in full in the majority’s opinion. That statute operated only when a defendant was convicted of at least two offenses before he was sentenced for either offense. The multiple offenses might all be charged in one information, as in this case, or in separate informations. In either instance, the statute required the multiple sentences to be served consecutively, unless the judge exercised his discretion to specifically provide they be served concurrently. The statute, however, did not give the trial court the discretion to determine, when sentences are to be served consecutively, which sentence was to be served first. Rather, the statute itself set out the order to be followed: “the imprisonment to which he is sentenced upon the second . . . conviction shall commence at the termination of the first . . . term of imprisonment . . .” (Italics mine.) As stated in Johnson v. Rhay, 266 F.2d 530, 532 (9th Cir. 1969). “This statute [former RCW 9.92.080] . . . appears . . . to be subject to the construction that the sentence imposed for the first conviction is to be served first, without regard to which sentence was first imposed.”
In most situations, the order in which the terms of the two consecutive sentences are served is of no consequence to the defendant. The parole board may grant parole at any time during either sentence. RCW 9.95.040, .110. However, when one of the convictions is for a crime carrying a mandatory life sentence, the order in which the sentences are served is crucial. The parole board is not allowed to parole a person who is sentenced under a mandatory life sentence *265until that person has been confined for 20 years less earned good time (a minimum period of 13 years, 4 months). RCW 9.95.040, .115. A defendant who serves his mandatory life sentence first will be eligible for parole as early as 13 years, 4 months after incarceration. However, a person who serves his mandatory life sentence second (as in the instant case) will not be eligible for parole until he has (1) served the term of the first sentence or been paroled from it to the mandatory life sentence, and (2) served the mandatory life sentence of at least 13 years, 4 months.
Thus, in this case, former RCW 9.92.080 created two classifications affecting parole eligibility. The first consisted of those defendants who served their mandatory life sentence first and were then immediately eligible for parole. The second classification consisted of those defendants who served their mandatory life sentence second (or later), and were not eligible for parole until after those defendants in the first classification became eligible.
Equal protection requires that a statutory “distinction . . . have some relevance to the purpose for which the classification is made.” Baxstrom v. Herold, 383 U.S. 107, 111, 15 L. Ed. 2d 620, 86 S. Ct. 760 (1966) (civil commitment statute). When the statutory order in which consecutive sentences must be served affects eligibility for parole, the statutory basis for the order of service must be one that bears a rational relationship to parole eligibility. Clearly, the order of conviction is not a rational basis for imposing different parole eligibility requirements between defendants convicted of identical crimes.
Moreover, the classification created by former RCW 9.92.080 is dependent solely upon the chronological order of conviction, which, as a practical matter, is set by the prosecutor’s numerical order of the counts in the information or indictment. The effect of the statute is to give the prosecutor the discretion, by the order in which he places the counts, to vary to a significant degree the punishment given defendants such as petitioner for precisely the same conduct. Thus, this court held in Olsen v. Delmore, 48 Wn.2d *266545, 550, 295 P.2d 324 (1956), that a penalty statute which confers such discretion under analogous circumstances upon the prosecutor is violative of equal protection.
The trial court does not have the power to change, on its own motion, the order of the counts in the information to nullify this discretion of the prosecutor. An information, of course, is “a written accusation of crime preferred by a public prosecuting officer without the intervention of a grand jury.” Ballentine’s Law Dictionary 621 (3d ed. 1969). The trial court has only the authority to “permit” amendment of the information. CrR 2.1(d). This language assumes the motion to amend will be made by the prosecutor. The trial court cannot, at least without acquiescence by the prosecutor, order an amendment of an information on its own motion.
We know of no authority for a superior court, on its own motion and over the objection of the People, to “amend” an information properly filed.
People v. Clark, 17 Cal. App. 3d 890, 898, 95 Cal. Rptr. 411 (1971). A contrary rule would interfere with the prosecutor’s discharge of trial responsibilities imposed upon him by law.
Therefore, in accordance with the long-established rule that a statute nondiscriminatory on its face may be applied in such a way as to violate equal protection (Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886)), former RCW 9.92.080 is unconstitutional in its application to defendant.
It is no answer to this complaint of petitioner, as the majority suggests, that “the manner in which multiple sentences are to be served, i.e., concurrently or consecutively, is left with the trial judge, not with the prosecuting attorney.” The vice of the statute was not the power vested' in the court to require that sentences be served concurrently or consecutively. The vice of the statute was that it bound the court to impose consecutive sentences in the order of conviction, and thereby arbitrarily classified some defend*267ants as eligible for parole earlier than other defendants convicted of identical crimes.
It is worth noting that the present RCW 9.92.080 no longer sets the order of service of consecutive sentences, and appears to leave this decision to the trial court.
To avoid the effect of the unconstitutional application of RCW 9.92.080 it would be necessary petitioner be made eligible for parole as of June 1975 (13 years, 4 months after petitioner’s incarceration). Whether parole will be granted is determined by the Board of Prison Terms and Paroles. I would, therefore, grant the writ of habeas corpus to the extent necessary to grant parole eligibility as stated.
Utter, J., concurs with Horowitz, J.
Petition for rehearing denied October 14, 1976.