Except for their discussion of implied malice, an issue not before us, I concur fully with the majority. But the presence of the dissent is yet another signal to the Legislature that the law of homicide is in need of revision.
My own recent separate opinions should have alerted the lawmakers to unnecessary complications in California homicide law. The cryptic law of implied-malice murder and the undue abstractness and open-endedness of the jury instructions on the subject are problems. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 112 [13 Cal.Rptr.2d 864, 840 P.2d 969] (conc. opn. of Mosk, J.).) Another set of difficulties lies in the multiple anomalies that People v. Whitfield (1994) 7 Cal.4th 437 [27 Cal.Rptr.2d 858, 868 P.2d 272] has created for the law of unlawful homicide and intoxication: (1) a grossly intoxicated defendant may be punished less than a legally intoxicated, but not stuporous, defendant; (2) the parties will use the same evidence of intoxication to both prove and disprove culpability and the defendant will try to prove a greater degree of intoxication while the prosecution will try to prove a lesser degree, thereby doubly confusing the jury; and (3) if intoxication is successfully invoked as a defense to implied-malice murder, a drunk driver could receive a significantly higher penalty (Pen. Code, § 191.5) than someone who commits another reckless act and is convicted of only involuntary manslaughter (id., §§ 192, subd. (b), 193, subd. (b)).
*785Equally important is “the need for legislative attention to the second degree felony-murder rule” (People v. Patterson (1989) 49 Cal.3d 615, 641 [262 Cal.Rptr. 195, 778 P.2d 549] (conc. & dis. opn. of Panelli, J.), a “court-created” doctrine (People v. Clark (1990) 50 Cal.3d 583, 656 [268 Cal.Rptr. 399, 789 P.2d 127] (conc. & dis. opn. of Kaufman, J.)) that “we have characterized ... as ‘anachronistic’ (People v. Burroughs [(1984)] 35 Cal.3d [824] at p. 829) and ‘disfavored’ (People v. Henderson [(1977)] 19 Cal.3d [86] at p. 92), based on the view of many legal scholars that the doctrine incorporates an artificial concept of strict criminal liability that ‘erodes the relationship between criminal liability and moral culpability.’ (People v. Washington (1965) 62 Cal.2d 777, 783 [44 Cal.Rptr. 442, 402 P.2d 130]; People v. Satchell (1971) 6 Cal.3d 28, 33 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383].) The Legislature . . . has taken no action to alter this judicially created rule, and has declined our more recent suggestion in People v. Dillon (1983) 34 Cal.3d 441, 472, footnote 19 [194 Cal.Rptr. 390, 668 P.2d 697], that it reconsider the rules on first and second degree felony murder and misdemeanor manslaughter.” (People v. Patterson, supra, 49 Cal.3d at p. 621 (lead opn. of Kennard, J.).)
In the case of People v. Whitfield, supra, 7 Cal.4th 437, the statute is clear and the error lies in the majority’s interpretation. (Id. at pp. 460-461 (conc. & dis. opn. of Mosk, J.); accord, id. at p. 477 (conc. & dis. opn. of Baxter, J.).) In the case of People v. Nieto Benitez, supra, 4 Cal.4th 91, the problem appears to be with the statute. This court’s difficulty in deciding whether imperfect self-defense survived legislative changes also can be laid to statutory ambiguities. A considered legislative reexamination of the mental states and acts associated with various types of lawful and unlawful homicide is needed.
I take the liberty to also suggest this is a particularly appropriate time for the Legislature to carefully reconsider Penal Code section 1096, which prescribes for all criminal trials a definition of “reasonable doubt” in such archaic terms as “abiding conviction,” “moral certainty,” and “moral evidence.” As I explained at length in my concurring opinion in People v. Brigham (1979) 25 Cal.3d 283, 292-316 [157 Cal.Rptr. 905, 599 P.2d 100], this anachronistic definition confuses, rather than clarifies, the critically important concept of reasonable doubt.
Although the United States Supreme Court did not reverse the judgments of conviction when similar instructions were given in Victor v. Nebraska (1994) 511 U.S. _ [127 L.Ed.2d 583,114 S.Ct. 1239], it is plain the justices have many of the same serious reservations about the instruction on reasonable doubt that I have expressed. Although Justice O’Connor observed for *786the majority that the jury likely did not consider the use of “moral certainty” in the instruction to suggest a standard of proof lower than due process requires, she forthrightly cautioned that “we do not condone the use of the phrase.” (511 U.S. at p. _ [127 L.Ed.2d at p. 597].)
Justice Kennedy, concurring, strongly condemned our reasonable doubt instruction. He wrote: “It was commendable for Chief Justice Shaw to pen an instruction that survived more than a century [Commonwealth v. Webster (1850) 59 Mass. (5 Cush.) 295, 320], but, as the Court makes clear, what once might have made sense to jurors has long since become archaic. In fact, some of the phrases here in question confuse far more than they clarify.
“Though the reference to ‘moral certainty’ is not much better, California’s use of ‘moral evidence’ is the most troubling, and to me seems quite indefensible. The derivation of the phrase is explained in the Court’s opinion, but even with this help the term is a puzzle. And for jurors who have not had the benefit of the court’s research, the words will do nothing but baffle.
“I agree that use of ‘moral evidence’ in the California formulation is not fatal to the instruction here. I cannot understand, however, why such an unruly term should be used at all when jurors are asked to perform a task that can be of great difficulty even when instructions are altogether clear. The inclusion of words so malleable, because so obscure, might in other circumstances have put the whole instruction at risk.” (511 U.S. at p. [127 L.Ed.2d at p. 601].)
Justice Ginsburg, also concurring, likewise agreed with the majority that “the term ‘moral certainty’ . . . should be avoided as an unhelpful way of explaining what reasonable doubt means.” (511 U.S. at p__[127 L.Ed.2d at p. 601].)
There is thus a strong possibility that legislative failure to substantially change Penal Code section 1096 may very well result in future reversals by the United States Supreme Court.