¶1(dissenting)—The majority by its opinion has converted the prosecutorial discretion doctrine into absolute discretion on whether a prosecutor shall prosecute a guilty person. It is my view that, under the habitual criminal statute, the prosecutor does not have any such discretion.
¶2An exhibit in the case disclosed a total felony conviction in 1972 and 1973 of 3,500 cases. Approximately 15 percent of this total were eligible for habitual criminal status. However, approximately one-tenth of one percent were charged as habitual criminals.
¶3A psychiatrist testifying at the trial said:
It was my opinion, with all due respect to the office of the prosecutor, that the method of selection of something like ten out of 510 potential people as candidates for *941being labeled habitual criminals was arbitrary, capricious and irrational, and it didn’t—it was not consistent with what little we do know about the accurate prediction of future criminality.
¶4Under such circumstances, prosecutorial discretion regarding punishment under the habitual criminal statute constitutes an abuse of prosecutorial discretion and a violation of equal protection of the laws.
¶5Does the prosecuting attorney have prosecutorial discretion where the proof of guilt is beyond any doubt and can be proven? The question answers itself. Let us suppose that a murder is committed in broad daylight, witnessed by many; that the murderer is apprehended at the scene with a smoking revolver in his hand; that the experts testify that the bullet which killed the victim came from the murderer’s gun, and that the evidence would further prove that the murderer did not have an arguable defense.
¶6Can anyone rationally argue that the prosecuting attorney has prosecutorial discretion to refuse to prosecute? The same situation applies under the habitual criminal statute. The State must prove its case by certified copies of previous convictions, and by fingerprints and pictures to prove that the defendant is the same person who committed previous crimes. Under such circumstances the defendant does not even have an arguable defense. Should the prosecuting attorney then have prosecutorial discretion to refuse to prosecute? Under the statute, it is mandatory and a direct charge on the prosecuting attorney to prosecute.
¶7The prosecuting attorney does have prosecutorial discretion where the evidence of previous conviction is either difficult to prove or questionable, or the conviction has been obtained without aid of counsel at previous convictions. But where the proof is clear and uncontradicted, it is an abuse of prosecutorial discretion not to prosecute.
¶8One of the greatest discontents with the criminal justice system is that of selective law enforcement. The citizens lose respect for the law and the criminal system because they know that violations of the law will not result in sanctions and the criminal law will affect only those who *942do not have status in society or be left to the whim of a public official.
¶9It does great violence and gives lie to one of our greatest concepts, “equal justice under the law,” for under selective prosecution there is no equal justice and some people are more equal or unequal than others.
¶10I believe in total law enforcement. If the laws are unjust they will be repealed; if the laws are just, the burden of obeying will fall upon everyone equally. It is argued that selective law enforcement is justified on the grounds of practicality. It is argued that it is not practical to enforce the law because we do not have the manpower or the money, or the institutions to incarcerate the guilty. We justify selective law enforcement because we don’t like a law or a violation of the law is considered not too serious. But practicality does violence to equal protection.
¶11To my mind, the failure of the criminal justice system and why it is held in disrespect, is brought about by selective law enforcement, which in turn destroys the citizens’ faith in equal justice under the law and the certainty of punishment for crimes.
¶12RCW 9.92.090, the statute under which the appellant is charged, provides that
[e]very person convicted in this state ... of any felony, who shall previously have been [twice] convicted . . . of any crime which under the laws of this state would amount to a felony, . . . shall be adjudged to be an habitual criminal and . . .
. . . shall be punished by imprisonment in the state penitentiary for life.
¶13The statute thus makes clear that every person who falls into the category set forth in the statute shall be sentenced .to life imprisonment. This statute is mandatory and requires that the prosecutor file the supplemental information charging every person convicted of a felony who has two previous felony convictions with a habitual criminal charge. It does not say that certain persons may be charged and others may not and gives no standards under which discretion might be exercised.
¶14*943It is to be noted that statutes in derogation of common law must be strictly construed and that statutes with punitive effects must be strictly construed against the State and in favor of the accused. State v. Wait, 9 Wn. App. 136, 509 P.2d 372, 65 A.L.R.3d 578 (1973); State v. Lewis, 46 Wn.2d 438, 282 P.2d 297 (1955); Seattle v. Green, 51 Wn.2d 871, 322 P.2d 842 (1958).
¶15U.S. Const, amend. 14 provides:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
¶16The purpose of the Fourteenth Amendment, to secure the equality of treatment for all persons, prohibits the use of prosecutorial discretion in determining which persons, given a set of persons with two prior felonies and a current felony conviction, shall be sentenced to life imprisonment and which shall not. There is a series of cases in Washington in which prosecutorial selectivity has been held to be a violation of equal protection. In Olsen v. Delmore, 48 Wn.2d 545, 550, 295 P.2d 324 (1956), the uniform firearms act was held unconstitutional because it authorized prosecuting attorneys to charge violations of the fact as either a gross misdemeanor or a felony. The court held that the uniform firearms act was so worded that the choice of punishment could rest with the charging authorities. In holding that this violated the equal protection clause of the fourteenth amendment to the United States Constitution and article 1, section 12, of the Washington State Constitution, the court stated:
A statute which prescribes different punishments or different degrees of punishment for the same act committed under the same circumstances by persons in like situations is violative of the equal protection clause of the fourteenth amendment of the United States Constitution.
¶17Here, it is not the statute which prescribes different pun*944ishment for the same act “committed under the same circumstances by persons in like situations”, but it is the policy of the prosecuting attorney in choosing to impose “different degrees of punishment” for persons in virtually similar circumstances which is a violation of the equal protection clause. In State v. Collins, 55 Wn.2d 469, 470, 348 P.2d 214 (1960), where the State charged the defendant with manslaughter in a vehicular homicide case, the defendant moved to dismiss on the ground that the negligent homicide statute was preemptive. The trial court dismissed and the Supreme Court affirmed. The court held
that in all cases where the negligent homicide statute is applicable, it supersedes the manslaughter statute. This not only accords with the rules of statutory construction, but is the interpretation necessary to satisfy the requirements of the fourteenth amendment to the Federal constitution requiring equal protection of the law for all persons.
¶18The court discussed prosecutorial discretion regarding -punishment in State v. Zornes, 78 Wn.2d 9, 24, 475 P.2d 109 (1970). The court cited with approval the following passages concerning the law of equal protection:
Generally speaking, the law with respect to the punishment to be inflicted for a crime must operate equally on every citizen or inhabitant of the state, and a statute is void as a denial of the equal protection of the laws which prescribes different punishments or different degrees of punishment for the same acts committed under the same circumstances by persons in like situation.
¶1916AC.J.S. Constitutional Law § 564 (1956).
That no one shall be subject .to any greater burdens or charges' than such as are imposed upon all others under like circumstances, means that such protection shall be extended to every person and everywhere without reference to his position in society, or station in life; whether he lives in town or the country, or whatever color may be the house in which he lives, or whether humble or imposing in structure.
¶20In re Mallon, 16 Idaho 737, 748, 102 P. 374 (1909).
¶21The existence of two prior convictions are “like circum*945stances,” according to the Zorneslanguage. The exercise of prosecutorial discretion to impose a heavier burden upon appellant than upon others in like circumstances is neither authorized by the statute nor is it in conformance with equal protection of the laws.
¶22In State v. Williams, 9 Wn. App. 622, 625, 513 P.2d 854 (1973), the Court of Appeals stated:
Every person convicted in this state ... of any felony, who shall previously have been twice convicted, ... of ... a felony, . . . shall be punished by imprisonment in the state penitentiary for life [RCW 9.92.090].
and accordingly, no guidelines are needed. The prosecuting attorney’s decision must be based upon his ability to meet the proof required by the statute. State v. Canady, 69 Wn.2d 886, 421 P.2d 347 (1966).
¶23(Italics mine.)
¶24The testimony by members of the prosecuting attorney’s office made it unmistakably clear that with regard to habitual criminal proceedings, its decision is not based upon its ability to meet the proof required by the statute, rather this decision is based on a number of unrelated factors. This testimony also made it clear that the office does intentionally discriminate in its enforcement of the statute. The testimony demonstrated that there was a direct violation of the holding in Williamsin the instant case. •
¶25I do not agree with State v. Nixon, 10 Wn. App. 355, 517 P.2d 212 (1973), and State v. Anderson, 12 Wn. App. 171, 528 P.2d 1003 (1974), where the appellate court ruled that selective enforcement of the statute by the prosecuting attorney was not unlawful. Mysteriously, the opinions made no reference to the Williamscase. Assuming arguendo that Williamsis superseded by Nixon, and that some selectivity may be exercised by the prosecutor, Nixonmakes it clear that such selectivity may not be exercised in the absence of rational justifiable standards, and that arbitrary selectivity and the use of unjustifiable standards will render such a process constitutionally void for lack of equal protection of the laws. As stated in Oyler v. Boles, 368 U.S. 448, 7 L. Ed. *9462d 446, 82 S. Ct. 501 (1962), and Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971), both of which are relied upon in the Nixoncase, arbitrary classification and unjustifiable standards used in selection of individuals to be charged is unconstitutional.
¶26The fact that the prosecutor may exercise this selectivity with apparently beneficent motives does not alter the fact that if it is done arbitrarily and without justifiable standards it is constitutionally defective. We should be mindful of the admonition given by the United States Supreme Court in Baggett v. Bullitt, 377 U.S. 360, 373, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1964): “Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.” In the more recent case of Papachristou v. Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972), the court noted that where there are no standards governing the exercise of discretion granted by a statute, the scheme permits and encourages arbitrary enforcement of the law.
¶27Is the selective process used by the prosecuting attorney’s office arbitrary and based upon unjustifiable standards? The evidence in this case shows that the prosecutor’s office makes its initial selection of whom to consider out of those “eligible” in a completely arbitrary, hit-and-miss manner, totally without standards of any kind. The office is not even aware of which individuals coming through the system have current third felonies and it is only by chance or. by virtue of a detective’s or deputy’s subjective judgment that such a person comes to its attention, Further, once someone has come to the attention of the prosecutor’s office, its decision as to whether to file a charge is based on very limited objective facts, including past offenses, current offense, whether the individual has served time in an institution, whether the sentencing judge will commit him to the penitentiary for the third felony, and a few other facts. There is no psychiatric study, the parole or probation officer who often has intimate knowledge of the individual is rarely if ever consulted for his *947opinion, there is no prediction table based upon scientific evidence, and numerous other factors which should be considered in making such an ultimate decision are not considered. They do not keep any records other than a vote count on those considered. The prosecution has no objective basis then for predicting future conduct using objective standards, yet they exercise the power to say “X” should be excluded from society for a life term but not “Y.” Subjective determinations based on guesswork, sentencing an individual to life imprisonment, and taking the sentencing function away from a judge and the parole board, are not reasonable justifications for selecting certain individuals and not others. Oyler v. Boles, supra.Arbitrary classification and the use of unjustifiable standards occur, where the mood or method of tabulating votes of a meeting of senior deputies in the prosecutor’s office—a meeting of adversaries, with a bias and without the advice of the prosecuting attorney—determines whether a given individual shall be excluded from society for life rather than another in similar circumstances.
¶28The prosecutor’s office then has the best of both worlds —rather than charge all those convicted of three felonies or more and then have a trial related to proof of the convictions, they get to pick and choose and then have their court proceedings and claim the defendant is afforded the same due process as anyone else facing a “criminal” trial.
¶29Until the record discloses some rational basis for selective prosecutions and shows a majority of the habitual criminals are proceeded against, I would reverse on the ground of violation of equal protection of the laws.
¶30Utter, J., concurs with Rosellini, J.
¶31Petition for rehearing denied February 4, 1977.