(concurring in the result). Defendant, Ronald Tyrone Wilder, was convicted by a jury of first-degree (felony) murder, MCL 750.316; MSA 28.548, and armed robbery, MCL 750.529; MSA 28.797.
The Court of Appeals affirmed defendant’s conviction of murder but vacated his conviction of armed robbery on double jeopardy grounds.1
I
This case presents two questions of importance to the criminal jurisprudence of Michigan. The first is whether, in the words of our first-degree murder statute, MCL 750.316; MSA 28.548, "murder * * * committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping”2 requires a mens rea apart from the intent to commit one of the enumerated offenses. We answered this question in the affirmative in People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), *354however, and we need not consider it further. The holding of Aaron3 controls defendant’s challenge to the instructions on first-degree (felony) murder given in this case.4 The instructions clearly failed to satisfy the requirements of Aaron. Defendant’s conviction of first-degree (felony) murder must therefore be reversed.
II
The second question, which will arise if the prosecutor chooses to retry defendant for murder, is whether the constitutional guarantee against double jeopardy, US Const, Ams V, XIV; Const 1963, art 1, § 15, prohibits conviction of both first-*355degree (felony) murder and the underlying felony. I agree with the majority that convictions of both offenses cannot stand together, but I disagree with their reasoning and thus feel compelled to express my own views on an important and frequently contested area of constitutional law.
A
It is important at the outset to observe that the constitutional injunction against being "twice put in jeopardy” comprises three separate protections, each meant to safeguard different interests.5 In a now oft-quoted passage, the United States Supreme Court explained:
"The Court has held today, in Benton v Maryland [395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969)], that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
The first two protections pertain to the issue of multiple prosecution. The double jeopardy question in this case, however, concerns only the third protection, the protection against multiple punishment.
*356B
The jurisprudence of the Double Jeopardy Clause has been described as "a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator”.6 Nonetheless, a "polestar”7 has emerged to guide courts faced with the question of multiple punishment: legislative intent controls.8 That is, if the punishment imposed on a defendant, however onerous, is punishment the Legislature clearly intended to be imposed, the defendant has no recourse under the Double Jeopardy Clause.9
This principle was implicit in our two most recent cases on the subject, People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980), and Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), app dis sub nom Brintley v Michigan, 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979). In Jankowski we said:
"We note at the outset that the defendant’s double jeopardy challenge is not addressed to a legislative scheme of criminal punishment where a clear legislative intent to create more than a single crime exists.” Jankowski, supra, 85.
*357In Wayne County Prosecutor, we chose to disregard a line of authority that used a lesser included offense approach to resolve questions of multiple punishment.10 We found the authority
"inapposite because the Legislature ha[d] clearly expressed in the felony-firearm statute an intent to authorize multiple convictions and cumulative punishments.” Wayne County Prosecutor, supra, 402.
The implicit holding of Jankowski and Wayne County Prosecutor that legislative intent, and not the lesser included offense test, governs the question of double jeopardy in the context of multiple punishment has been confirmed by the most recent rulings of the United States Supreme Court. In Whalen v United States, 445 US 684; 100 S Ct 1432; 63 L Ed 2d 715 (1980), the Court was asked to decide whether the Double Jeopardy Clause forbade the imposition of consecutive sentences for felony murder and the underlying felony. In a passage relevant to this case, the Court said:
"In the present case * * * if Congress has not authorized cumulative punishments for rape and for an unintentional killing committed in the course of the rape * * * the petitioner has been impermissibly sentenced. The dispositive question, therefore, is whether Congress did so provide.” Id., 688-689.
Even more explicit is the following passage from Albernaz v United States, 450 US 333; 101 S Ct 1137; 67 L Ed 2d 275 (1981):
"[T]he ’power to define criminal offenses and to pre*358scribe punishments to be imposed upon those found guilty of them, resides wholly with the Congress.’ [Whalen v United States, 445 US 684, 689; 100 S Ct 1432; 63 L Ed 2d 715 (1980).] As we previously noted in Brown v Ohio [432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977),] 'where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.’ 432 US at 165. Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishment, imposition of such sentences does not violate the Constitution.” Id., 344 (emphasis added).
C
To decide multiple punishment double jeopardy questions this Court has, as a general rule, applied a lesser included offense analysis.11 This was the case in People v Jankowski, supra, where we remarked,
"Because the prohibition embodied in the double jeopardy clause prevents multiple punishment for the same offense, this Court has repeatedly stated that a defendant may not be convicted of both the greater and lesser included offenses.” 408 Mich 79, 90-91.
The lesser included offense test is a derivative of the Blockburger rule, which states:
"[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of *359a fact which the other does not.” Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932).12
In the context of multiple punishment, the United States Supreme Court has unambiguously expressed the view that the Blockburger test is not a constitutional rule but merely a rule of statutory construction:
"The Blockburger test is a 'rule of statutory construction’, and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.” Albernaz v United States, supra, 340. Accord, Whalen v United States, supra, 691-692.
This is simply a corollary of the principle that legislative intent is the decisive criterion in multiple punishment cases.
For the same reason our lesser included offense test should be considered a rule of statutory construction to be applied only when it is probative of legislative intent.13 In this case, it is not.
D
Defendant was convicted of first-degree (felony) murder and armed robbery. The former offense is defined by reference to the latter offense (or, more *360precisely, to a class of offenses that includes the latter offense), and therefore proof of the latter is a prerequisite for proof of the former. In this regard the latter offense is a predicate for the former, which may be thought of as a predicate-based offense.14
The point that needs to be made is this: that a predicate-based offense requires proof of a predicate offense does not mean that the two offenses are greater and lesser included offenses in the traditional sense. "[T]he concept of included offenses reflects a continuum of culpability.”15 Offenses lie on the same continuum, and are therefore greater and lesser included offenses, when "the elements shared by the two offenses coincide in the harm to the societal interest to be protected”. People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975). These offenses then are tied together by logic. In contrast, predicate-based offenses and their predicates are tied together by the Legislature.16
In our cases that have used the lesser included offense test,17 the implicit assumption has been that, for committing a single criminal act, the Legislature did not intend a person to be convicted of and punished for two or more offenses lying on a single continuum of culpability. This is because each continuum comprises those offenses that *361serve to vindicate the same social norm.18 Thus, if one commits a criminal act that violates a single social norm, conviction of and punishment for a single offense would seem to vindicate the interests infringed by that act.
The same assumption cannot be made when the Legislature defines an offense by reference to another offense or class of offenses. As illustrated by our first-degree murder statute, predicate offenses need not be on the same logical continuum of culpability as the predicate-based offense:
"[I]t strains credulity to hold that the underlying felony merges into the felony murder. The statute proscribing the underlying felony — robbery, for example —is designed to protect a wholly different societal interest from the felony murder statute, which is intended to protect against homicide.” United States v Greene, 160 US App DC 21, 44; 489 F2d 1145, 1168 (1973) (Bazelon, C.J., dissenting).
Consequently, an inference of a legislative intent against multiple punishment should not arise from the fact that the predicate-based offense requires proof of a predicate offense.
Our Court of Appeals has, on at least two occasions, analyzed a predicate-based offense statute and discerned a legislative intent to prescribe multiple punishment, although the reasoning underlying the findings is not clear. In People v *362Densmore, 87 Mich App 434; 274 NW2d 811 (1978), the Court considered the first-degree murder statute, see fn 2, supra, and accompanying text, and concluded,
"Since the Legislature has seen fit to clearly enumerate the exclusive felonies which can underlie a felony-murder conviction, it would not comport with the legislative intent if we were to adopt defendant’s theory of merger.” Id., 440.
In People v Robideau, 94 Mich App 663; 289 NW2d 846 (1980), the defendant brought a double jeopardy challenge against his convictions of armed robbery and first-degree criminal sexual conduct. The latter conviction was obtained under the section of the statute that reads,
"A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if
"[s]exual penetration occurs under circumstances involving the commission of any other felony.” MCL 750.520b(1)(c); MSA 28.788(2)(1)(c).
(The predicate offense was, of course, armed robbery.) The Court rejected the challenge and, referring to the statutory language just quoted, said:
"Nor is there any constitutional infirmity under the standard in People v Martin [398 Mich 303; 247 NW2d 303 (1976)] and People v Stewart [(On Rehearing), 400 Mich 540; 256 NW2d 31 (1977)]. As explicated in Wayne Prosecutor, supra, 399-402, the evil sought to be prevented in those cases was multiple convictions and cumulative punishments based on only one occurrence when the statutes involved failed to evidence a clear legislative intent to authorize the same. Such is not the *363case here. We fínd a clear expression of a legislative intent to authorize multiple convictions and cumulative punishments in the language of MCL 750.520b, just as the Court in Wayne Prosecutor, supra, 402, found similar legislative intent expressed in the felony-firearm statute.” 94 Mich App 663, 670-671 (emphasis added).
Although I would not go so far as to say that either the first-degree murder statute or the first-degree criminal sexual conduct statute manifests "a clear expression of a legislative intent to authorize multiple convictions and cumulative punishments”, the statements made in Densmore and Robideau do recognize that the relationship between a predicate-based offense and a predicate offense is different from the relationship between traditionally recognized greater and lesser included offenses. Moreover, the unarticulated premise of those decisions, with which I agree, is the determination that when the Legislature chooses to define an offense in terms of another independently defined offense or set of offenses, it is not expressing the judgment that the defendant should not be multiply punished.
Put differently, lesser included offense analysis is misplaced in the context of predicate-based offenses because it bears no logical relationship to legislative intent regarding punishment.19 Hence the lessons of the line of authority represented by *364People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977),20 are not instructive here.
E
There still remains the question whether the Legislature intended that a person be convicted of and punished for both first-degree (felony) murder and the underlying felony. The language of the first-degree murder statute does not speak to the issue of multiple punishment.21 As noted above, however, a first-degree (felony) murder transaction involves violations of distinct social norms: the norm against homicide and the norm against the harm proscribed by the underlying felony. This raises an inference, at least, that the Legislature intended to impose multiple punishment.
However, this is not enough to conclude that “a clear legislative intent”22 to impose multiple punishment exists, and a clear legislative intent is required to overcome what is in effect the rebuttable presumption against multiple punishment contained in the Double Jeopardy Clause,23 which works as a particularized version of the rule of lenity:
"This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as *365to what Congress intended.” Ladner v United States, 358 US 169, 178; 79 S Ct 209; 3 L Ed 2d 199 (1958), quoted in Whalen v United States, supra, 695, fn 10.
For this reason, and not because proof of armed robbery was required to establish first-degree (felony) murder in this case, defendant cannot be subjected to multiple punishment.
F
Finally, I wish to express my disagreement with the majority’s position that Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977); Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), and In re Hans Nielsen, 131 US 176; 9 S Ct 672; 33 L Ed 118 (1889), support the use of lesser included offense analysis in this case. Although each of these cases used that analysis, all three arose in the context of multiple prosecutions. Not one addressed the question of multiple punishment at a single trial. The guarantee against double jeopardy operates differently in the areas of multiple prosecution and multiple punishment because different interests are implicated.24 Thus, the meaning of "same offense” depends on the context in which the double jeopardy question arises;25 the cases cited by the majority speak to a problem not presented here.
People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978).
The first-degree murder statute was amended by 1980 PA 28. The portion of the statute quoted now reads, "[m]urder * * * committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping”.
"[W]e hold today that malice is the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm. We further hold that malice is an essential element of any murder, as that term is judicially defined, whether the murder occurs in the course of a felony or otherwise.” People v Aaron, supra, 728.
"Now as to the first count in the information, that is murder first-degree, felony, that means this: was there a robbery or attempt[ed] robbery, and while the robbery or the attempt[ed] robbery was going on was Mr. Roosevelt Reaves killed and murdered?
"Now if the prosecution has shown you that these two men were acting in concert, that is together, and that they aided and assisted each other in the perpetration or the commission of a robbery, or the commission of attempted] robbery, and Mr. Reaves was killed as a result of that, they have proven to you beyond a reasonable doubt that this is first-degree murder, felony. The felony being the robbery.
"Now I know you have heard of a premeditated killing. We are not concerned with that in this case, because the law supplies the premeditation and the deliberation if a person is killed in the perpetration of a robbery, or the attempted] perpetration of a robbery. The prosecution does not have to prove premeditation and deliberation, it is automatically supplied because the law says that, if a person is killed in the perpetration or attempted] perpetration of a robbery that is first-degree murder, felony. But you must be satisfied beyond a reasonable doubt that there was a robbery or the attempted] perpetration of a robbery committed by these defendants, not by somebody else. And that’s important. The prosecution must prove that they committed that act or attempted to commit that act of robbery and during that Mr. Reaves was killed.”
See Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich L Rev 1001 (1980); Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup Ct Rev 81; Note, Twice in Jeopardy, 75 Yale LJ 262 (1965).
Albernaz v United States, 450 US 333, 343; 101 S Ct 1137; 67 L Ed 2d 275 (1981).
Whalen v United States, 445 US 684, 712; 100 S Ct 1432; 63 L Ed 2d 715 (1980) (Rehnquist, J., dissenting).
Albernaz v United States, supra, 344; see Whalen v United States, supra, 688-689; Brown v Ohio, 432 US 161, 165; 97 S Ct 2221; 53 L Ed 2d 187 (1977); People v Jankowski, 408 Mich 79, 85; 289 NW2d 674 (1980); Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374, 392, 402; 280 NW2d 793 (1979), app dis sub nom Brintley v Michigan, 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979).
Restrictions of a substantive nature on the Legislature’s prerogative to define offenses and fix punishments are contained elsewhere. See US Const, Ams VIII, XIV; Const 1963, art 1, §§ 16-17; Whalen v United States, supra, 689, fn 3; People v Gary Hughes, 85 Mich App 674, 685, fn 5; 272 NW2d 567 (1978) (opinion of Bronson, J.).
People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977); People v Martin, 398 Mich 303; 247 NW2d 303 (1976); People v Cook, 236 Mich 333; 210 NW 296 (1926). The same approach was used in People v Jankowski, supra.
See cases cited in fn 10 supra.
Our test differs from the federal rule, by looking to the evidence presented at trial rather than the statutory elements of the offenses in the abstract. As we held in People v Jankowski, supra:
"For purposes of the double jeopardy analysis, as a matter of state constitutional law, the question is not whether the challenged lesser offense is by definition necessarily included within the greater offense also charged, but whether, on the facts of the case at issue, it is.” 408 Mich 79, 91.
See Whalen v United States, supra, 712 (Rehnquist, J., dissenting) ("If the polestar in this case is to be legislative intent, I see no reason to apply Blockburger unless it advances that inquiry.”).
Other examples of predicate-based offenses include felony-firearm, MCL 750.227b; MSA 28.424(2), and first- and second-degree criminal sexual conduct, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c) (first degree); MCL 750.520c(1)(c); MSA 28.788(3)(1)(c) (second degree).
Note, Consecutive Sentences in Single Prosecutions: Judicial Multiplication of Statutory Penalties, 67 Yale LJ 916, 925 (1958) (hereinafter cited as Consecutive Sentences).
For a recognition of the distinction between a " 'logically’ included offense” and a " 'legislatively determined’ included offense”, see Wayne County Prosecutor v Recorder’s Court Judge, supra, 406-407 (Kavanagh, J., dissenting).
See cases cited in fn 10 supra.
"Vindication of a single social norm should, consistent with the concept of lesser included offenses * * *, be suggestive of an intent not to allow cumulative punishment.” Consecutive Sentences, fn 15 supra, 929-930 (footnotes omitted).
And, as another writer put it,
"If several statutes are not only usually violated together but also seem designed to protect the same social interest, the inference becomes very strong that the function of the multiple statutes is only to allow alternative means of prosecution.” Twice in Jeopardy, fn 5 supra, 319.
In a dissenting opinion in Whalen v United States, supra, Justice Rehnquist examined the nature of the difference between "greater and lesser offenses in the traditional sense” on one hand and " 'compound’ ["predicate-based” in my idiom] and 'predicate’ offenses” on the other. 445 US 684, 708-709. After considering the application of the Blockburger test to a compound offense and its various predicate offenses, he concluded:
"[W]hen applied to compound and predicate offenses, the Blockburger test has nothing whatsoever to do with legislative intent, turning instead on arbitrary assumptions and syntactical subtleties. * * * If the polestar in this case is to be legislative intent, I see no reason to apply Blockburger unless it advances that inquiry.” Id., 712.
See fn 10 supra.
But see People v Densmore, supra, 440. Compare MCL 750.227b; MSA 28.424(2) (felony-firearm statute), construed in Wayne County Prosecutor v Recorder’s Court Judge, supra.
People v Jankowski, supra, 85.
See Westen, fn 5 supra, 1026-1030; Twice in Jeopardy, fn 5 supra, 313-317.
See authorities cited in fn 5 supra.
See Whalen v United States, supra, 698-699 (Blackmun, J., concurring); 700-701 (Rehnquist, J., dissenting); Brown v Ohio, supra, 166, fn 6; 170 (Brennan, J., concurring); Westen, fn 5 supra, 1002-1004 and fns 8-9, 11-12; Westen & Drubel, fn 5 supra; 121-122, fn 188; 156-163, fn 346; Twice in Jeopardy, fn 5 supra, 267 and fn 19; 272, fn 50; 275, fn 59; 301-302. Compare People v White, 390 Mich 245; 212 NW2d 222 (1973) (same transaction test for multiple prosecution), with People v Jankowski, supra (lesser included offense test for multiple punishment).