Chun

I concur in the majority’s decision to reaffirm the constitutional validity of the long-standing second degree felony-murder rule. (Maj. opn., ante, at pp. 1187-1188.) Ever since the Penal Code 1 was enacted in 1872, and going back even before that, to California’s first penal law, the Crimes and Punishments Act of 1850 (Stats. 1850, ch. 99, p. 229), the second degree felony-murder rule has been recognized as a rule for imputing malice under the statutory definition of implied malice (§ 188) 2 where the charge is second degree murder. (Maj. opn., ante, at pp. 1184-1188.) As the majority explains, “The willingness to commit a felony inherently dangerous to life is a circumstance showing an abandoned and malignant heart. The second degree felony-murder rule is based on statute and, accordingly, stands on firm constitutional ground.” (Maj. opn., ante, at pp. 1187-1188.)

Although the majority reaffirms the constitutional validity of the second degree felony-murder rule, it goes on to render the rule useless in this and future cases out of strict adherence to the so-called “merger doctrine” announced in People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ]…

The second degree felony-murder mle is deeply flawed. The majority attempts once more to patch this judicially created mle and improves the state of the law considerably, but several years ago I expressed my willingness to “reassess[] the rule in an appropriate case.” (People v. Robertson (2004) 34 Cal.4th 156, 176 [ 17 Cal.Rptr.3d 604 , 95 P.3d 872 ] (conc. opn. of Moreno, J.); see People v. Burroughs (1984) 35 Cal.3d 824, 829, fn. 3 [ 201 Cal.Rptr. 319 , 678 P.2d 894 ] [“the time may be ripe to reconsider [the] continued vitality” of the second degree felony-murder mle].) This is that case. The time has come to abandon the second degree felony-murder mle.

“The felony-murder mle has been roundly criticized both by commentators and this court. As one commentator put it, ‘[t]he felony murder mle has an extensive history of thoughtful condemnation.’ [Citation.]” (People v. Robertson, supra, 34 Cal.4th 156, 174 (conc. opn. of Moreno, J.).) As the majority notes, “[t]he felony-murder mle makes a killing while committing certain felonies murder without the necessity of further examining the *1214 defendant’s mental state.” (Maj. opn., ante, at p. 1182.) Regardless of this court’s view…

*1178 Opinion

In this murder case, the trial court instructed the jury on second degree felony murder with shooting at an occupied vehicle under Penal Code section 246, the underlying felony. 1 We granted review to consider various issues concerning the validity and scope of the second degree felony-murder rule.

We first discuss the rule’s constitutional basis. Although the rule has long been part of our law, some members of this court have questioned its constitutional validity. We conclude that the rule is based on statute, specifically section 188’s definition of implied malice, and hence is constitutionally valid.

Next we reconsider the contours of the so-called merger doctrine this court adopted in People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ] (Ireland). After reviewing recent developments, primarily some of our own decisions, we conclude the current state of the law in this regard is untenable. We will overrule some of our decisions and hold that all assaultive-type crimes, such as a violation of section 246, merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction. Accordingly, the trial court…

In this murder case, the trial court instructed the jury on second degree felony murder with shooting at an occupied vehicle under Penal Code section 246, the underlying felony. [1] We granted review to consider various issues concerning the validity and scope of the second degree felony-murder rule.

We first discuss the rule's constitutional basis. Although the rule has long been part of our law, some members of this court have questioned its constitutional validity. We conclude that the rule is based on statute, specifically section 188's definition of implied malice, and hence is constitutionally valid.

Next we reconsider the contours of the so-called merger doctrine this court adopted in People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ] ( Ireland ). After reviewing recent developments, primarily some of our own decisions, we conclude the current state of the law in this regard is untenable. We will overrule some of our decisions and hold that all assaultive-type crimes, such as a violation of section 246, merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction. Accordingly, the trial court…