¶1concurring:
¶2I write separately to address a point made by the dissent. The criminal intent and inherent danger underlying battery is, for purposes of merger, indistinguishable from the other felonious predicate crimes of burglary. In my view, the deterrence of accidental or negligent killings by felons is only one of the policies served by the felony-murder rule. To me, the fundamental purpose of the felony-murder rule is to prevent innocent deaths likely to occur during the commission of inherently dangerous felonies.
¶3Indeed, each predicate crime specifically enumerated in Nevada’s felony-murder statute,
¶4Thus, the legislature, when it included burglary as a predicate crime of felony murder, was clearly aware that a burglary charge may be based upon the intent to commit a felonious assault or battery. The legislature, in light of this awareness, did not specifically exclude burglary perpetrated with the intent to commit assault or battery as a basis for felony murder. This, in turn, indicates that the legislature never intended the merger doctrine to operate under such circumstances.
¶5As noted by the majority, other jurisdictions have refused to preclude a felony-murder charge stemming from a burglary the *339predicate crime for which is battery, or assault.
¶6CONCLUSION
¶7The crime of battery is as inherently dangerous as the other predicate felonies of burglary, if not more so, and the legislature has not created any exceptions to the specifically enumerated felonies that may serve as a predicate for burglary for the purpose of the felony-murder rule. Thus, the majority correctly refrains from judicially creating distinctions between the predicate crimes of burglary for these purposes.
¶8 See, e.g., People v. Washington, 402 P.2d 130, 139 (Cal. 1965) (Burke, J., dissenting) (recognizing that deterring the undertaking of inherently dangerous felonies is an “equally cogent purpose” of the felony-murder rule); State v. Williams, 254 So. 2d 548, 550 (Fla. Dist. Ct. App. 1971) (citing this policy as the “obvious ultimate purpose” of the felony-murder rule).
¶9 See NRS 200.030(1) (“Murder of the first degree is murder which is: . . . (b) [cjommitted in the perpetration or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years or child abuse.”).
¶10 Payne v. State, 81 Nev. 503, 506, 406 P.2d 922, 924 (1965).
¶11 NRS 205.060(1) provides:
A person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the intent to commit grand or petit larceny, assault or battery on any person or any felony, is guilty of burglary.
¶12 See, e.g., People v. Miller, 297 N.E.2d 85, 88 (N.Y. 1973) (refusing to extend the merger doctrine where “the [¡legislature, in enacting the burglary and felony-murder statutes, did not exclude from the definition of burglary, a burglary based upon the intent to assault”); People v. Lewis, 791 P.2d 1152, 1154 (Colo. Ct. App. 1989) (“[T]here is no logic or reason to preclude a felony murder charge from being based upon a burglary charge that, in turn, is premised upon ... an intent to assault . . . .”).
¶13dissenting:
¶14I would affirm the judgment of the district court dismissing the first-degree felony-murder charge. The intent required to make the entry into the motel room a burglary, namely, the intent to apply force and violence to the victims, is the same intent that supports the felony-murder charge. The felony-murder rule raises a homicide to first-degree murder without requiring the State to prove thetraditional first-degree murder elements of willfulness, premeditation, and deliberation. The felonious intent involved in the underlying felony is regarded as sufficient intent to raise the resulting homicide to first-degree murder. When the felonious intent involved in committing the burglary is the same intent involved in the resulting homicide, the felony-murder rule is expanded beyond the reason for its existence.
¶15I agree with the California Supreme Court in People v. Wilson when it said:
[T]he only basis for finding a felonious entry is the intent to commit an assault with a deadly weapon. When, as here, the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide and is included in fact in the offense charged, utilization of the felony-murder rule extends that doctrine “ ‘beyond any rational function that it is designed to serve.’ ” We have *340heretofore emphasized “that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application.”1
¶16The California court concluded that the purpose of the felony-murder rule, to deter felons from killing negligently or accidentally, is not met when the underlying felony has the same general mental purpose as the homicide — to physically harm the victim.
In [People v. Ireland3 ], we rejected the bootstrap reasoning involved in taking an element of a homicide and using it as the underlying felony in a second degree felony-murder instruction. We conclude that the same bootstrapping is involved in instructing a jury that the intent to assault makes the entry burglary and that the burglary raises the homicide resulting from the assault to first degree murder without proof of malice aforethought and premeditation. To hold otherwise, we would have to declare that because burglary is not technically a lesser offense included within a charge of murder, burglary constitutes an independent felony which can support a felony-murder instruction. . . . [A] burglary based on intent to assault with a deadly weapon is included in fact within a charge of murder, and cannot support a felony-murder instruction.4
¶17In Payne v. State, this court agreed with California as to the purpose of the felony-murder rule, stating:
The original purpose of the felony-murder rule was to deter felons from killing negligently or accidentally by holding them strictly responsible for the killings that are the result of a felony or an attempted one. People v. Washington, 44 Cal.Rptr. 442, 402 P.2d 130 (1965). In the majority of jurisdictions, such a homicide acquires first degree murder status without the necessity of proving premeditation and deliberation. The heinous character of the felony is thought to justify the omission of the requirements of premeditation and deliberation.5
¶18Here, when the defendants entered the building with the intent to harm the victims, the purpose of the felony-murder rule was not *341implicated because the subsequent harm to the victims was not negligent or accidental; harm to the victims was the very reason for the defendants’ entry into the motel room.
¶19In Wilson, the California court reached a similar result, concluding that the felony-murder rule does not apply to a murder that follows from an assault with a deadly weapon.
¶20Here, as NRS 205.070 specifically provides, each crime, the burglary and the homicide, can be charged separately. However, because the burglary and the homicide share the same underlying intent, the felony-murder rule should not apply. Application of the rule would bootstrap the homicide into first-degree murder simply because of the location of the homicide. Where, as here, the intent in both the underlying felony and the homicide is the same, application of the felony-murder rule does not further the rule’s intended purpose, to prevent accidental or negligent killing, but rather, extends the rule unjustly.
¶21Felony murder itself is an anomaly in that, unlike most felonies, it does not require that the defendant intend the resulting harm; on the contrary, it addresses accidental or unintentional killing. Application of the felony-murder rule when the underlying felony involves the intent to do serious bodily harm defeats the purpose of the rule and unfairly elevates a crime to first-degree murder without requiring the State to prove willfulness, deliberation, and premeditation. The State here has every opportunity to prove second-degree murder.
¶22462 P.2d 22, 28 (Cal. 1969) (quoting People v. Phillips, 414 P.2d 353, 360 & n.5 (Cal. 1966) (quoting People v. Washington, 402 P.2d 130, 134 (Cal. 1965)), overruled on other grounds by People v. Flood, 957 P.2d 869 (Cal. 1998)).
¶24450 P.2d 580 (Cal. 1969).
¶25 Wilson, 462 P.2d at 28-29 (citation omitted).
¶2681 Nev. 503, 506, 406 P.2d 922, 924 (1965).