The State of Washington, Respondent, v. Jacob Gamble, Petitioner, 154 Wash. 2d 457

¶1 This case requires us to consider whether the Court of Appeals, after properly vacating a conviction for second degree felony murder, erred in remanding the case with directions to enter a verdict of guilty on the offense of first degree manslaughter. Specifically, we must consider whether first degree manslaughter is a lesser included offense of second degree felony murder where second degree assault, as set forth in RCW 9A.36.021(1)(a), is the predicate felony.

While both parties petitioned this court to review numerous issues, our grant of review is limited to the question of whether the Court of Appeals remand instructions were proper. We hold that despite the unique nature of the predicate assault elements, manslaughter is not a lesser included offense of second degree felony murder where second degree assault, RCW 9A-.36.021(1)(a), is the predicate felony. We thus conclude the Court of Appeals erroneously remanded for an entry of conviction of first degree manslaughter. Bridge, J.

I ¶2 On March 26, 1999, 19-year-old Jacob Gamble attended a party at a neighbor’s house. By 11:30 p.m., over 50 individuals were at the party, most drinking alcohol or smoking marijuana. Gamble’s friend, Kevin Phommahasay expressed an intent to confront and fight Curtis Esteban that night. When Esteban, along with his friend Daniel Carroll, arrived at the party, Phommahasay immediately went outside to confront Esteban and struck him in the head with a beer bottle. At that time, Gamble struck Carroll in the face, knocking him to the ground. Carroll hit his head on the ground and was rendered unconscious.

Gamble and Ryan May then began to kick and stomp on Carroll. Carroll died of blunt head trauma. ¶3 The State charged Gamble with first degree felony murder with robbery as the predicate felony and, alternatively, with second degree felony murder with second degree assault as the predicate felony. At trial, Gamble requested the court instruct the jury on the offense of first degree manslaughter as a lesser included offense to the charge of second degree felony murder. The trial court denied Gamble’s proposed instruction, ruling manslaughter is not a lesser included offense of felony murder.

A jury convicted Gamble on both felony murder charges. Gamble appealed. ¶4 In relation to the second degree felony murder conviction, Gamble asserted that the trial court erred in failing to instruct the jury on manslaughter. Gamble argued that the lesser included offense test, as set forth in State v. Berlin, 133 Wn.2d 541, 545-46, 550, 947 P.2d 700 (1997), compelled a finding that manslaughter is a lesser included offense in this case.

During the pendency of his appeal, this court decided In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002) (holding assault cannot serve as predicate felony for felony murder) and the Court of Appeals solicited additional briefing on its impact. State v. Gamble, noted at 116 Wn. App. 1016, 2003 WL 1298906, at *6, 2003 Wash. App. LEXIS 444, at *16-17. In response to this request, in a reverse course from his earlier position, Gamble conceded in his supplemental briefing that Washington law does not provide for lesser included offenses to second degree felony murder. See Appellant’s Second Suppl.

Br. at 6 (noting appellant “is not allowed access to such lesser included-offenses [as manslaughter] if Felony Murder in the Second Degree is charged”) (citing State v. Tamalini, 134 Wn.2d 725, 747, 953 P.2d 450 (1998)). The State consistently maintained, at trial and on appeal, that manslaughter is not, and cannot be, a lesser included offense of felony murder. ¶5 In light of the Andress decision, because the predicate felony with which Gamble was charged was an assault, the Court of Appeals vacated the second degree felony murder conviction. State v. Gamble, 118 Wn. App. 332, 336, 72 P.3d 1139 (2003).

The Court of Appeals then independently crafted a remedy neither party sought. The Court of Appeals remanded to the trial court with directions to enter a guilty verdict on what it determined to be “the lesser included offense of first degree manslaughter.” Gamble, 118 Wn. App. at 340. In reaching this result, the Court of Appeals recognized that its ruling was contrary to decisions of this court explicitly holding that manslaughter is not a lesser included offense to felony murder. Id. (noting Tamalini, 134 Wn.2d at 729).

The Court of Appeals nonetheless asserted it was bound by the lesser included offense standard set forth in State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978), and reaffirmed in Berlin, 133 Wn.2d at 548-49. Gamble, 118 Wn. App. at 340. The Court of Appeals reasoned that, in this case, the Workman standard compelled a result contrary to our pronouncement in Tamalini. Id. ¶6 In petitioning for review, both Gamble and the State now contend that the Court of Appeals erred in holding that manslaughter is a lesser included offense of second degree felony murder.

We granted review to decide whether the Court of Appeals properly remanded for entry of conviction of first degree manslaughter. II 17 The sole dispositive issue before the court is whether first degree manslaughter is a lesser included offense of second degree felony murder where assault, as defined in RCW 9A.36.021(1)(a), is the predicate felony. ¶8 Defendants have a federal and state constitutional right to be informed of the charges against them. We have stated that generally a defendant may be convicted only of those crimes with which he or she has been charged. Berlin, 133 Wn.2d at 544.

However, both the defendant and the State have a statutory right to present lesser included offense instructions to the jury. Tamalini, 134 Wn.2d at 728. The relevant statute provides: “[T]he defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information.” RCW 10.61.006.

To establish that an offense is a lesser included offense, “first, each of the elements of the lesser offense must be a necessary element of the offense charged; second, the evidence in the case must support an inference that the lesser crime was committed.” Berlin, 133 Wn.2d at 548 (citing and reinstating rule set forth in Workman, 90 Wn.2d at 447-48) (referred to herein as the “Workman standard”). The first prong is often referred to as the “legal prong” and the second as the “factual prong.” See, e.g., Tamalini, 134 Wn.2d at 729.

The legal prong encompasses the constitutional requirement that a defendant have notice of the charges against him or her. Berlin, 133 Wn.2d at 546. ¶9 Applying this standard, we have previously held that manslaughter is not a lesser included offense to either degree of felony murder. These cases have consistently held that such an instruction would fail the legal prong of the Workman standard.

See Tamalini, 134 Wn.2d at 729-30 (fails “legal prong” as “all of the elements of the lesser offenses were not necessary elements of the greater offense”); Berlin, 133 Wn.2d at 550 (reaffirming result reached in Davis, infra)', State v. Davis, 121 Wn.2d 1, 7, 846 P.2d 527 (1993) (noting “the specific mental elements required to prove first and second degree manslaughter [do] not apply to felony murder”); State v. Dennison, 115 Wn.2d 609, 627, 801 P.2d 193 (1990) (fails the legal prong because “[t]he statutory

definitions of first and second degree manslaughter require proof of specific mental elements that are not required to prove . . . felony murder”); State v. Frazier, 99 Wn.2d 180, 191-92, 661 P.2d 126 (1983) (same). ¶10 Both parties rely on Tamalini for the proposition that manslaughter is not a lesser included offense of felony murder. As here, in Tamalini the defendant was convicted of second degree felony murder with second degree assault as the predicate felony. 134 Wn.2d at 727.

The majority in Tamalini, without conducting an analysis of the predicate assault felony, concluded that the specific mental elements of manslaughter are not elements of the felony murder statutes. Id. at 729-30. Tamalini does not cite to the relevant assault statute in its opinion. Id. Nevertheless, Tamalini correctly concluded in holding that neither degree of manslaughter, in that case, was a lesser included offense of second degree felony murder. Id. This practice is consistent with this court’s prior approach to the issue.

See, e.g., Berlin, 133 Wn.2d at 549-50 (holding felony murder lacks mental elements required to prove manslaughter, but performing no explicit analysis of elements of predicate offense); Davis, 121 Wn.2d at 7 (same); Dennison, 115 Wn.2d at 627 (same); but see also Frazier, 99 Wn.2d at 192 (looking to elements of predicate felony and accordingly noting that felony murder requires no specific mental state “other than the one necessary for the predicate crime — in this case, robbery in the first degree”).

In sum, in our previous cases regarding lesser included offenses to felony murder, we have compared the elements of manslaughter and felony murder without consistently conducting any further in depth analysis of the elements of the necessary predicate felony. fll The Court of Appeals below performed the additional step of looking at the elements of the predicate felony and found the unique nature of the assault charge here to include the mental states also required to prove manslaughter. Gamble, 118 Wn. App. at 337-39. While the Court of Appeals applied the correct process, its conclusion was erroneous.

Ill ¶12 Turning to the facts of this case, a jury convicted Gamble of second degree felony murder with second degree assault as the predicate felony. The Workman lesser included offense standard instructs that we first examine the elements of the offenses as charged. Workman, 90 Wn.2d at 447-48. The second degree felony murder statute provides: A person is guilty of murder in the second degree when: . . .

He commits or attempts to commit any felony other than those enumerated in RCW 9A.32.030(l)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants. Former RCW 9A.32.050(l)(b) (1975). In proving this offense, the State must also necessarily prove the defendant committed the predicate felony. Second degree assault, as charged here, provides: “A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: . . .

Intentionally assaults another and thereby recklessly inflicts substantial bodily harm.” RCW 9A.36.021(1)(a). The State must prove all essential elements of the above two offenses in order to achieve a guilty verdict for second degree felony murder.

A person is guilty of first degree manslaughter when that person “recklessly causes the death of another person.” RCW 9A.32.060(1)(a). ¶13 The Court of Appeals applied the Workman standard and determined that when second degree assault, as defined in RCW 9A.36.021(1)(a), is the predicate felony for a second degree felony murder charge, first degree manslaughter may be a lesser included offense.

The Court of Appeals determined that because the Workman standard requires courts to examine the offenses as charged, it should examine the elements of the offense the State was required to prove, including those of the predicate felony. Gamble, 118 Wn. App. at 339 (citing Berlin, 133 Wn.2d at 548 (citing Workman, 90 Wn.2d at 447-48)). The Court of Appeals correctly notes the crucial importance of this analytical step. See, e.g., State v. Wanrow, 91 Wn.2d 301, 311, 588 P.2d 1320 (1978) (elements of the predicate felony are “necessary” elements of felony murder).

Because the State must prove the elements of the predicate felony to prove the offense of felony murder, the Court of Appeals properly considered those elements. ¶14 However, the Court of Appeals then analyzed the issue as follows: In convicting Gamble of second degree felony murder as charged, the jury necessarily found that

(1) Gamble intentionally assaulted Carroll and thereby (2) recklessly inflicted substantial bodily harm that (3) caused Carroll’s death. If proof of these elements necessarily establishes guilt of another lesser included offense, Gamble’s case may properly be remanded for resentencing on that lesser included crime. We apply the lesser included offense analysis to the offenses as charged and prosecuted, rather than as they broadly appear in statute.

Although a person may commit the crime of first degree manslaughter without intentionally assaulting his victim, he may not do so without recklessly inflicting substantial bodily harm (element 2) causing victim’s death (element 3). Thus, the jury necessarily found that Gamble committed all elements of first degree manslaughter beyond a reasonable doubt when it found that he committed second degree felony murder by second degree assault in violation of RCW 9A.32.050(1)(

b) and RCW 9A.36.021(1)(

a) as charged. Gamble, 118 Wn. App. at 338-39 (citations omitted). Thus, the Court of Appeals essentially adopted Gamble’s initial argument on appeal that, as prosecuted here, the “only real distinction between [first degree manslaughter] and assault in the assault charge is the element of intent.” Br. of Appellant at 40. As such, the Court of Appeals found that, given the unique nature of the predicate assault felony, all the elements of manslaughter are necessarily encapsulated within Gamble’s felony murder conviction.

This finding is erroneous. ¶15 The Court of Appeals here mischaracterizes the relative mens rea elements applicable in manslaughter and second degree assault. To secure a felony murder conviction in Gamble’s case, the State was required to prove the defendant intentionally assaulted another and recklessly inflicted bodily harm. RCW 9A.36.021(1)(a). Then, pursuant to the felony murder statute, it was additionally required to prove that another person died as a result of this action.

Former RCW 9A.32.050(1)(b). ¶16 However, neither of the two requisite mens rea elements required the State prove the defendant “recklessly cause [d] the death of another person.” RCW 9A.32.060(1)(a) (first degree manslaughter). The Court of Appeals erroneously examines the elements in isolation, failing to give due regard to their necessary relational nature.

Our criminal code defines “recklessness” in the following way: A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation. RCW 9A.08.010(1)(c). Looking to the “wrongful act” caused by a defendant’s actions, to prove manslaughter the State must show Gamble “[knew] of and disregarded] a substantial risk that a [homicide] may occur.” Id.

On the contrary, to achieve a felony murder conviction here, the State was required to prove only that Gamble acted intentionally and “disregard [ed] a substantial risk that [substantial bodily harm] may occur.” Id. Significantly, the risk contemplated per the assault statute is of “substantial bodily harm,” not a homicide as required by the manslaughter statute. As such, first degree manslaughter requires proof of an element that does not exist in the second degree felony murder charge the State brought against Gamble.

It is thus unamenable to a lesser included offense instruction on the offense of manslaughter. ¶17 The intent of the legislature, in enacting the felony murder statutes, is “to punish those who commit a homicide in the course of a felony under the applicable murder statute.” Wanrow, 91 Wn.2d at 308. In short, it is an “erroneous assumption that intent to kill is an element of second-degree felony-murder... . Intent to kill is not the sine qua non of felony-murder, either historically or in this statutory scheme.” Id. at 306 (citations omitted).

We recently confirmed this conclusion in Andress when we stated: “of course, by electing to charge second degree felony murder, the State does not have to prove intent to kill, or, indeed, any mental element as to the killing itself.” Andress, 147 Wn.2d at 614 (emphasis added). This second observation is at issue here and is ultimately determinative. As shown above, manslaughter does require proof of a mental element vis-a-vis the killing. See RCW 9A.32.060(1)(a) (recklessness); see also RCW 9A.32.070(1) (criminal negligence).

The charge the State brought against Gamble did not require proof of such an element. ¶18 Because manslaughter requires the proof of a mens rea element vis-a-vis the resulting death, while felony murder as charged here does not, it cannot be a lesser included offense to the State’s felony murder charge. As we have previously stated in this same context, because “all of the elements of the lesser offense [] [are] not necessary elements of the greater offense” manslaughter is not a lesser included offense of first or second degree felony murder. Tamalini, 134 Wn.2d at 730.

The unique nature of the predicate felony assault charge here does not present an exception to this rule. IV ‘ ¶19 We hold that first degree manslaughter is not a lesser included offense of second degree felony murder where second degree assault, as defined in RCW 9A-.36.021(1)(a), is the predicate felony.

We affirm the Court of Appeals vacation of Gamble’s second degree felony murder conviction but reverse the Court of Appeals remand for entry of a conviction of first degree manslaughter and sentencing. ¶20 We thus affirm in part and reverse in part the Court of Appeals decision and remand for further proceedings in accord with this decision. See State v. Hanson, 151 Wn.2d 783, 791-92, 91 P.3d 888 (2004) (citing Andress, 147 Wn.2d at 616 n.5). Alexander, C.J.; C. Johnson, Owens, and Fairhurst, JJ.; and Ireland, J. Pro Tern., concur.

In an unpublished opinion, the Court of Appeals reversed the first degree felony murder conviction, concluding that there was insufficient evidence to support the conviction. State v. Gamble, noted at 116 Wn. App. 1016, 2003 WL 1298906, at *2-3, 2003 Wash. App. LEXIS 444, at *4-8. This reversal is not before the court. Berlin overruled the lesser included offense test established in State v. Lucky, 128 Wn.2d 727, 735, 912 P.2d 483 (1996) in favor of a return to the Workman standard. Berlin, 133 Wn.2d at 545-49. RCW 9A.36.021 was amended by Laws of 2003,

chapter 53,

section 64 and Laws of 2001, Second Special Session,

chapter 12,

section 355. Neither amendment affected subsection RCW 9A.36.021(1)(

a) which is at issue here. The sixth amendment to the United States Constitution directs that “[i]n all criminal prosecutions, the accused shall... be informed of the nature and cause of the accusation.” U.S. Const, amend. VI. The Washington State Constitution also provides that “[i]n criminal prosecutions the accused shall have the right... to demand the nature and cause of the accusation against him, [and] to have a copy thereof.” Const, art. I, § 22. RCW 10.61.003 provides that a jury may also convict a defendant of an inferior degree of the crime charged.

We have previously held that manslaughter is not an inferior degree offense of felony murder. In Tamalini, this court expressly adopted the analysis in State v. McJimpson, 79 Wn. App. 164,171-72, 901 P.2d 354 (1995), holding that “the manslaughter statutes and the felony murder statutes proscribe significantly different conduct and thus define separate and distinct crimes.” 134 Wn.2d at 732. In sum, while the applicable statutes “proscribe the killing of another human being generally, [they] are directed to significantly differing conduct of defendants.” Id. at 733.

The parties do not dispute this holding, and it is not at issue here. Davis disposed of the lesser included offense issue in a less than clear manner by additionally stating that because of “[t]he myriad of alternative ways in which one may commit second degree felony murder ... it [is] unamenable to a lesser included offense instruction.” 121 Wn.2d at 7. According to the Workman standard, courts look to whether the elements of the lesser offense are necessarily included in the greater offense, as charged. Workman, 90 Wn.2d at 448.

The statutory alternative ways a greater offense may be committed are not relevant. Tamalini, while affirming the result the Davis court reached, overruled this portion of the Davis analysis. 134 Wn.2d at 729 n.1. While Berlin recognized the flaws in the Davis analysis, the Court of Appeals below mistakenly asserts that Berlin overruled Davis in whole. Gamble, 118 Wn. App. at 340. On the contrary, Berlin explicitly “affirm[ed] the result. .. reached in Davis” that manslaughter is not a lesser included offense of felony murder. Berlin, 133 Wn.2d at 550.

Amended by Laws of 2003, ch. 3, § 2 (allowing felony assault to serve as the predicate felony for second degree felony murder). Cf State v. Bowerman, 115 Wn.2d 794, 805-06, 802 P.2d 116 (1990). In Bowerman, the State charged the defendant with aggravated first degree murder for paying a third party to kill her former boyfriend. Id. at 797. The defendant asserted the trial court erred in not granting her proposed instruction on second degree murder as a lesser included offense of aggravated first degree murder. Id. at 805.

On review, the State responded by arguing the evidence did not support such an instruction as the defendant admitted to premeditation, an element of first degree but not second degree murder. Id. at 805-06. However, the court noted the defendant admitted to hiring someone to “ ‘rough up’ ” the victim, but not to kill him. Id. at 805.

Thus, the court rejected the State’s argument per the facts of the case, finding that the premeditation that the defendant admitted to, if any, was the “premeditated intent to injure” the victim, not the “premeditated intent to kill that is an element of first degree murder.” Id. at 806. While discussing the mental elements in a context different from the issue facing the court here, Bowerman reached a similar conclusion. Even if the result is the same (death), intent to injure and intent to kill are not synonymous.

Similarly, recklessly causing a death and recklessly causing substantial bodily harm are not synonymous. It is analytically helpful to examine why, as opposed to felony murder, first degree manslaughter is a lesser included offense to first and second degree intentional murder. See, e.g., Berlin, 133 Wn.2d at 550-51. Second degree intentional murder requires that the defendant intentionally, but without premeditation, cause the death of another person. Former RCW 9A.32.050(1)(a). First degree manslaughter requires the defendant recklessly cause the death of another person. RCW 9A.32.060(1)(a).

RCW 9A.08.010(2) sets forth the principle that the state of mind of recklessness is necessarily included within intent. As such, the state of mind of recklessness is a “necessary element! ] of the greater crime of second degree murder.” Berlin, 133 Wn.2d at 551; see also State v. Jones, 95 Wn.2d 616, 620-21, 628 P.2d 472 (1981). In this context, the elements of intent and recklessness both relate to the same wrongful act, the killing of another person.

In short, first degree and second degree intentional murder, and manslaughter, “are defined in part by reference to the kinds of culpability set forth in RCW 9A.08.010(1).” Jones, 95 Wn.2d at 620-21. The same cannot be said of felony murder. On the contrary, our felony murder statutes do not require the State prove any particular state of mind vis-a-vis the unlawful killing. Andress, 147 Wn.2d at 614. As such, the justification supporting the conclusion that manslaughter is a lesser included offense to intentional murder does not hold true with regard to felony murder.