dissenting.
I respectfully dissent.
If one interprets the evidence in favor of the jury’s verdict in this case, the defendant, an experienced marksman, pointed a loaded pistol at his wife which he knew to be loaded, cocked the hammer, and then pulled the trigger believing the barrel was not pointed directly at her. They had been arguing about various family problems; and on past occasions, he had pointed the gun at himself and at his wife as a way of maintaining control within the family.
The majority has upheld the defendant’s challenge to the facial constitutionality of the statute under which he was convicted, section 18-3-102(l)(d), C.R.S.1973 (1978 Repl. Vol. 8). Specifically, the majority holds that extreme indifference murder, section 18-3-102(l)(d), is indistinguishable from second-degree murder, section 18-3-103(l)(a), C.R.S.1973 (1978 Repl. Yol. 8); and thus the defendant’s conviction violates the Colorado Constitution art. II, sec. 25. See People v. Estrada, 198 Colo. 188, 601 P.2d 619 (1979) (equal protection is inherent in the state constitution’s due process clause and is violated if widely divergent sentences are mandated for statutory offenses proscribing the same conduct).
My analysis differs in certain fundamental respects, and I reach an opposite conclusion.
I.
In order to understand the majority’s opinion, it is helpful to clarify its context. The statutory language of section 18-3-102(l)(d) has not been found to be so vague that a man of common intelligence cannot understand its meaning. Furthermore, no invidious discrimination has been shown in its enforcement. See United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Rather, extreme indifference murder and second-degree murder have been interpreted by the majority as functionally identical. Once this construction has been reached, the well-established Colorado rule is then applied that different punishments may not be constitutionally 'imposed on defendants who have engaged in exactly the same criminal conduct. People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975).
The Calvaresi doctrine is grounded on the premise that equal justice is a constitutional guarantee of like treatment for all those who are similarly situated. The converse proposition — that different statutes may punish differently — has also received consistent support from this court. See, e. g., People v. Westrum, Colo., 624 P.2d 1302 (1981); People v. Estrada, supra; People v. Hulse, 192 Colo. 302, 557 P.2d 1205 (1976); People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969). Our determination of similarity and difference, by necessity, requires that we consider the meaning of shifting and varying statutory criteria. However, the conduct of our review in such cases should, in my opinion, be restrained by basic principles of constitutional interpretation.
It is our duty to presume that a statute on its face is constitutional and that it was intended by the legislature to be constitutional. People v. Edmonds, 195 Colo. 358, 578 P.2d 655 (1978); People v. Garcia, 189 Colo. 347, 541 P.2d 687 (1975). This legislative intent is to be ascertained and given effect wherever possible. People v. Sneed, 183 Colo. 96, 514 P.2d 776 (1973). We should not seek out reasons to invalidate a statute. Harris v. Heckers, 185 Colo. 39, 521 P.2d 766 (1974). Rather, if the statute *82is susceptible to different interpretations, one of which is constitutional, we should interpret it so as to preserve its validity. People v. Gonzales, 188 Colo. 272, 534 P.2d 626 (1975); People v. McKenzie, supra. In conducting our review, the defendant has the burden of proving unconstitutionality beyond a reasonable doubt. People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); People v. Sneed, supra; Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972).
In the present case, the majority’s interpretation of the statute ignores one obvious difference between extreme indifference murder and second-degree murder — the existence of an additional element of the offense. It then construes the statute’s culpability requirement in such a way as to stress points of similarity between the offenses instead of their essential point of difference.
II.
The Colorado legislature has adopted a degree structure for murder offenses and has established a variety of other homicide offenses. See title 18, article 3, part 1, C.R.S.1973 (1978 Repl. Vol. 8). These crimes differ in the types of conduct which are forbidden, the states of mind which accompany this forbidden conduct, and in their potential penalties. A broad spectrum of possible charges may be brought against a person who has caused the death of another. The person’s frame of mind in committing the forbidden act and the circumstances surrounding his conduct are crucial elements in determining the blameworthiness of his behavior and the justice of any consequent punishment.
“Everything which is regarded as enhancing the moral guilt of a particular offense is recognized as a reason for increasing the severity of the punishment awarded to it.” J. Stephen, A History of the Criminal Law of England, vol. II, at 81 (London, 1883).
A comparison of the two statutes at issues here clearly demonstrates that extreme indifference murder contains an element in addition to those established for second-degree murder. The elements of the latter offense, section 18-3-103(l)(a), are as follows: (1) knowingly (2) causing a person’s death.1 Extreme indifference murder, section 18-3-102(l)(d), has the following elements: (1) knowingly engaging in conduct that creates a grave risk of death to another person (2) causing the death of another (3) under circumstances manifesting extreme indifference to the value of human life.
The majority holds that this third element of extreme indifference murder “connotes ... a heightened awareness and disregard of a fatal risk.” Whatever the merits of this proposed definition, the majority proceeds to transform its possible meaning by setting up a series of interpretive equations, first with willful conduct (a “level of culpability that is more than reckless, but less than intentional”) and then with knowing conduct [defined as identical with willful conduct under section 18-1-501(6), C.R. S.1973 (1978 Repl. Vol. 8)]. Thus, by playing with verbal mirrors, all substantive content is drained from the statutory language until whatever independent significance it has left is discovered to be “already implicit in the other statutory component of the offense,” knowingly engaging in conduct that creates a grave risk of death to another person. I think it is enough to say that this court is not obligated to adopt this analysis.
The circumstances under which an act is performed may have a vital effect upon the seriousness of its legal consequences. For instance, if a person intentionally causes the death of another under circumstances that show he acted “upon a sudden heat of passion,” he is guilty of manslaughter rather than a murder offense under Colorado’s legislative scheme. See section 18-3-104(l)(c), C.R.S.1973 (1978 Repl. Vol. 8). Justice *83Holmes has forcefully illustrated how the circumstances under which an act is committed could radically affect a defendant’s guilt or innocence under the common law homicide offenses:
“When a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done: if it were in a country village, where few passengers are, and he calls out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning; and murder, if he knows of their passing, and gives no warning at all.” The Common Law at 50 (Howe ed., Little, Brown and Company, 1963).
In a similar manner, under our present legislative scheme, which provides a much broader and more sophisticated range of homicide offenses than did the common law, a defendant is subject to a greater penalty if he knowingly causes the death of another “[u]nder circumstances manifesting extreme indifference to the value of human life.” Section 18-3-102(l)(d), C.R.S.1973 (1978 Repl. Yol. 8).
An extreme indifference to the value of human life may be defined as a “depraved kind of wantonness.” See People v. Poplis, 30 N.Y.2d 85, 281 N.E.2d 167, 330 N.Y.S.2d 365 (1972). It is more blameworthy than the indifference to human life implicit in second-degree murder because the defendant’s behavior shows that his disrespect, lack of care, and lack of concern for the value of human life are extreme. The quality of extreme indifference distinguishes this form of murder from second-degree murder because it is possible to commit second-degree murder without it. The nature, duration, and intensity of the murderer’s culpable state of mind, as well as his manner of killing, his relationship to the victim, and the presence or absence of mitigating factors, may all affect a jury’s determination of whether circumstances are present which justify the conclusion that the defendant acted with extreme indifference to the value of human life.
The presence of this element must be proven by sufficient, competent evidence. A jury’s finding of guilt for extreme indifference murder requires that the jurors made an additional judgment of a distinct kind beyond what is necessary for a verdict of guilty to second-degree murder. They must be persuaded beyond a reasonable doubt that the degree of indifference to human life shown by the defendant in committing murder was “extreme.”
A variety of circumstances may exhibit a legally sufficient degree of depravity or of outrageous disregard for human life to support a jury’s find that a defendant has committed an offense such as that proscribed in the extreme indifference murder statute. For example, such circumstances exist when, during a game of Russian roulette, the defendant points a revolver loaded with a single cartridge at his friend and fires it on the third pull of the trigger [Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946)], or when a defendant fires several shots into a home which he knows to be occupied [Hill v. Commonwealth, 239 Ky. 646, 40 S.W.2d 261 (1931)], or when an adult defendant subjects a small child to repeated brutal beatings [People v. Poplis, supra], or when a defendant intends to shoot over his victim’s head in order to scare him and hits him by “mistake” [Myrick v. State, 199 Ga. 244, 34 S.E.2d 36 (1945)]. Other and certainly more heinous forms of indifference to the value of human life can be imagined, but the majority’s constitutional resolution of the present case makes all such circumstances equally irrelevant.2
*84The defendant here has not questioned the sufficiency of the evidence in his case. So for purposes of this dissent, I do not discuss it.
III.
The two statutes which are being compared differ in one other important aspect: the relation of their culpable mental states to their other statutory elements.
As the majority points out, the Colorado Criminal Code has consistently provided that extreme indifference murder and second-degree murder contain the same mens rea element. Prior to amendments made in 1977, both statutes required that their respective criminal acts be committed “intentionally.” See section 18-1-501(5), C.R.S.1973 (1978 Repl. Vol. 8). Now both statutes require that the defendant act “knowingly” in order to be convicted.
The definition of acting “knowingly” is given in section 18-1-501(6), C.R.S.1973 (1978 Repl. Vol. 8), and it is divisible into two parts:
“A person acts ‘knowingly’ ... with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts ‘knowingly’ . .. with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.” (Emphasis added.)
We have previously interpreted the mens rea element of second-degree murder in relation to the preceding definition:
“The elements of murder in the second degree concerning the defendant’s state of mind are (1) that the death was more than merely a probable result of the defendant’s actions and (2) that the defendant was aware of the circumstances which made death practically certain.” People v. District Court, 198 Colo. 70, -, 595 P.2d 1045, 1047 (1979), citing People v. Mingo, 196 Colo. 315, 584 P.2d 632 (1978).
The first aspect of this requirement is measured by an objective standard: Did the defendant engage in conduct which made the victim’s death more than merely a probable result of his actions? The second aspect of this mens rea is tested by a subjective standard: Was the defendant aware of the circumstances which made the victim’s death practically certain?
I agree with the majority that the state of mind necessary to commit extreme indifference murder contains the elements of second-degree murder. The defendant must be shown to have caused a death which was more than merely the probable result of his actions, and he must be shown to have been aware that his conduct created a “grave risk of death” to another. An awareness of the “grave risk of death” and an awareness of the practical certainty of causing death are functional equivalents.
However, the presence of an additional element in the definition of extreme indifference murder requires the prosecution to prove that the defendant was aware that his conduct manifested an extreme indifference to the value of human life when he knowingly caused the victim’s death. See section 18-1-503(4), C.R.S.1973 (1978 Repl. Vol. 8). In this respect, section 18-3-102(l)(d) focuses on the culpable quality of the defendant’s mental state in a way to be rationally distinguished from the mental element involved in the commission of second-degree murder.
IV.
It is obvious from my interpretation of these statutes that I find section 18-3-103(l)(a) to be a lesser included offense of section 18-3-102(l)(d). See People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977); People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). The greater offense must necessarily contain the elements of the lesser. To this extent, they were pre-ordained to be similar in very basic ways.
In order to be guilty of extreme indifference murder, a defendant by positive implication must have committed acts which would justify a conviction for second-degree murder. However, guilt for second-degree *85murder is not sufficient to create guilt for extreme indifference murder. An additional element must be proven, and the defendant’s awareness of this additional element must also be proven. This is all that is needed to distinguish the statutes as a constitutional matter. See People v. McKenzie, supra. The separate offenses are qualitatively and categorically distinct.
It is a well-known principle in Colorado that a single criminal transaction may give rise to the violation of more than one statute. People v. Westrum, supra; People v. James, 178 Colo. 401, 497 P.2d 1256 (1972); People v. McKenzie, supra. See People v. District Court, supra (the trial court found probable cause to support a charge under section 18-3-102(l)(d) and was instructed to reinstate charges for second-degree murder). It is for the jury, not this court, to decide whether the facts of the individual case justify a finding that the defendant is guilty of the greater or of the lesser included offense.
I cannot agree with the majority’s interpretation of section 18 — 3—102(l)(d), C.R.S. 1973 (1978 Repl. Vol. 8). I must dissent.
. The phrase “but not after deliberation” in section 18-3-103(l)(a) is not an element of the offense; it describes what second-degree murder is not rather than what it is. See the opinion of the majority, supra, n. 6.
. It may be argued that the facts as set forth in this court’s opinion in People v. Jones, 193 Colo. 250, 565 P.2d 1333 (1977), appeal dismissed, 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977), do not clearly show circumstances that would support the jury’s verdict. Our judicial problem, it seems to me, is clarifying what evidence is necessary for sufficiency. A constitutional “solution” to this problem is quick and easy but unjustified.