Benway

*507 Opinion

Defendant Mary Ann Benway was convicted of second degree felony murder of her seven-month-old daughter, Raelynn. The principal issue on appeal is whether the merger doctrine barring application of the second degree felony-murder rule applies equally to all forms of felony child abuse. (Pen. Code, § 273a, subd. (1).)

Facts

Mary Ann Benway gave birth to Raelynn in August 1979 while living with Raelynn’s father, Tony Miller. Several months later, Miller and Ben-way separated.

Miller testified that Benway treated Raelynn “all right” while they were living together. However, he stated that in November 1979, Benway tossed Raelynn into the air and onto a sofa three to six feet away saying, “Stay out here with your father.” Raelynn began crying, but did not appear to be hurt.

Miller saw Raelynn periodically after he and Benway separated. In January 1980, he noticed Raelynn had a black eye. Benway said Raelynn hit her face when she fell off a restaurant seat. Later in January, Miller noticed bruises on Raelynn’s back while he was bathing her. Benway did not know how these bruises occurred.

In early 1980, Benway moved into an apartment with Raymond Boles, his…

I concur in the majority opinion but make an additional observation.

As evidenced by People v. Burroughs (1984) 35 Cal.3d 824 [ 201 Cal.Rptr. 319 , 678 P.2d 894 ] and People v. Smith (1984) 35 Cal.3d 798 [ 201 Cal.Rptr. 311 , 678 P.2d 886 ], the second degree felony-murder rule is gasping for breath. If not already dead its days are certainly numbered. *514 However, resuscitation or if necessary resurrection is still possible. The Legislature, if of course it deems it appropriate, may codify the rule.

People v. Dillon (1983) 34 Cal.3d 441 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ], addressing statutory first degree felony murder, demonstrates the benefit when doctrines with such important ramifications for all concerned have a specific statutory basis upon which courts determine their correct application.

Respondent’s petition for review by the Supreme Court was denied May 23, 1985.

WALLIN, Acting P.J.

Defendant Mary Ann Benway was convicted of second degree felony murder of her seven-month-old daughter, Raelynn. The principal issue on appeal is whether the merger doctrine barring application of the second degree felony-murder rule applies equally to all forms of felony child abuse. (Pen. Code, § 273a, subd. (1).) [1]

Mary Ann Benway gave birth to Raelynn in August 1979 while living with Raelynn's father, Tony Miller. Several months later, Miller and Benway separated.

Miller testified that Benway treated Raelynn "all right" while they were living together. However, he stated that in November 1979, Benway tossed Raelynn into the air and onto a sofa three to six feet away saying, "Stay out here with your father." Raelynn began crying, but did not appear to be hurt.

Miller saw Raelynn periodically after he and Benway separated. In January 1980, he noticed Raelynn had a black eye. Benway said Raelynn hit her face when she fell off a restaurant seat. Later in January, Miller noticed bruises on Raelynn's back while he was bathing her. Benway did not know how these bruises occurred.

In early 1980, Benway moved into an apartment with Raymond Boles, his…