concurring in part and dissenting in part.
I respectfully dissent as to part VII of the opinion. I agree, however, with the views expressed in the remainder of the opinion.
In People v. Rael, 199 Colo. 201, 612 P.2d 1095 (1980), the defendant was charged with the same section of the first degree assault statute as is involved here and also was charged with the predicate offense of first degree burglary. After being convicted of both first degree assault and first degree burglary, Rael appealed, claiming that he could not be convicted of both offenses since they had merged.
Our supreme court rejected Rael’s contention that there had been a merger. It stated:
[FJirst-degree assault requires proof of serious bodily injury, which first-degree burglary does not, and first-degree burglary as charged requires proof of the intent to cause bodily harm, which the form of first-degree assault charged here does not. Thus, both crimes require proof of an additional fact not necessary in proof of the other.
People v. Rael, 199 Colo, at 204, 612 P.2d at 1097.
Similarly, here, first degree assault requires the element of serious bodily injury which is not an element of attempted aggravated robbery. See 18-3-202(l)(d), C.R.S. (1986 Repl.Vol. 8B). And, attempted aggravated robbery as charged here requires proof that the defendant wounded or struck the person robbed with a deadly weapon which is an element not contained in the crime of first degree assault. See § 18-4-302(l)(b), C.R.S. (1986 Rep.Vol. 8B). Thus, I conclude Rael is dispositive of defendant’s assertion that his two convictions merged.
Nor am I persuaded that People v. Bartowsheski, 661 P.2d 235 (Colo.1983) and Boulies v. People, 770 P.2d 1274 (Colo.1989) have eroded the vitality of Rael and now require a different result.
In Bartowsheski and Boulies, our supreme court held that the lesser crimes of robbery and aggravated robbery merged into the greater crime of first degree felony murder. However, the felony murder statute reflects a policy judgment by the General Assembly that a person who engages in inherently dangerous conduct which results in the death of another will be punished in accordance with the serious results of that conduct, even if the death was an unintended consequence of the original behavior.
Here, the felony murder statute is not involved.
In summary, given the important factual distinctions between Rael and the Bar-towsheski-Boulies line of eases, I am not persuaded that our supreme court has implicitly overruled Rael.
I therefore would hold that defendant’s conviction here for attempted aggravated robbery is not a lesser included offense of his conviction for first degree assault, and I would not reverse the attempted aggravated robbery conviction on that basis. See People v. Moore, 860 P.2d 549 (Colo.App.1993) (Rothenberg, J., dissenting in part from denial of People’s petition for rehearing).