I respectfully dissent. In permitting petitioner to be tried for murder in the first degree, the majority’s opinion directly conflicts with the specific language of Penal Code section 189 and carves out an impermissible exception which the Legislature never intended.
In California, murder is defined as “the unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).)1 2The malice necessary for a murder conviction “may be express or implied. It is express when there is manifested a deliberate intention unlawfully[2] to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.)
*142Murder is divided into two degrees by statute. “All murder [1] which is perpetrated by means of a destructive device or explosive, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or [2] which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288,[3], is murder of the first degree; and all other kinds of murders are of the second degree.” (Italics added.) (§ 189.)
In the present case, the majority concedes that neither petitioner nor his accomplice fired the shot which killed Vaca (maj. opn., ante, at p. 136) and, therefore, petitioner may not be found guilty of murder—of any degree—on the basis of the felony-murder rule, since “[sjection 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words ‘murder . . . which is committed in the perpetration . . . [of robbery beyond common understanding.” (Italics added.) (Washington, supra, 62 Cal.2d at p. 781.)
Although the majority opinion holds that petitioner cannot be tried on a felony-murder theory, it finds there is sufficient evidence in the record to justify a trial of petitioner for murder on a vicarious liability/implied malice theory. The majority reasons that there is probable cause to believe that the death of Vaca was attributable to an act of implied malice by petitioner’s accomplice and that petitioner may be held vicariously liable for this act.
Relying on People v. Gilbert (1965) 63 Cal.2d 690, 705 [47 Cal.Rptr. 909, 408 P.2d 365], reversed on other grounds (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951], the majority holds that the killing here would be murder of the first degree, if it had been committed in the perpetration of one of the felonies enumerated in section 189. (Maj. opn., ante, at p. 139.) However, this proposition, concerning the degree of implied-malice murder, contradicts the express language of section 189, which specifies the two “kinds” of murder which may be first degree. One “kind” of first degree murder is a murder “perpetrated by means of *143a destructive device or explosive, poison* lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing ....” None of these enumerated “means” was employed in petitioner’s case. Therefore, the only other basis for a first degree murder finding is the felony-murder rule, i.e., a killing “committed in the perpetration of, or attempt to perpetrate, ... robbery ....” However, as this court has repeatedly held and as the majority expressly concedes, a killing is not “committed in the perpetration of... robbery ...” (§ 189) where, as here, the fatal shot is not fired by a principal in the robbery. (Washington, supra, 62 Cal.2d at p. 781; Taylor v. Superior Court (1970) 3 Cal.3d 578, 582 [91 Cal.Rptr. 275, 477 P.2d 131]; People v. Antick (1975) 15 Cal.3d 79, 87 [123 Cal.Rptr. 475, 539 P.2d 43]; maj. opn., ante, at p. 136.)
Since the killing in the present case does not fall within either of these two categories, it obviously must be some other “kind” of murder. Section 189 unambiguously states that “<z// other kinds of murders are of the second degree.” (Italics added.) The majority’s conclusion that petitioner’s “implied malice” murder (maj. opn., ante, at p. 131) would be first degree murder squarely contradicts this statutory law.4
Since it is axiomatic that this court should not create a rule that directly conflicts with a valid legislative enactment (Ferguson v. Keays (1971) 4 Cal.3d 649, 654 [94 Cal.Rptr. 398, 484 P.2d 70]), this holding in the majority opinion and in Gilbert, supra, should not stand.
All statutory references herein are to the Penal Code.
“Unlawfully” is defined as a killing which is neither excusable (§ 195) nor justifiable (§§ 196, 197).
This “kind” of first degree murder is the statutory enáctment of the felony-murder doctrine. (People v. Washington (1965) 62 Cal.2d 777, 780-781, 783 [44 Cal.Rptr. 442, 402 P.2d 130].) It ascribes the existence of malice aforethought and also first degree punishment to any felon who kills another “in the perpetration of, or attempt to perpetrate,” any of the enumerated offenses. (See, e.g., People v. Ireland (1969) 70 Cal.2d 522, 538 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323].)
While conceding that the killing of Vaca was not “committed in the perpetration of . . . robbery . . . the majority asserts that the murder of Vaca was, because Esquivel’s act of using Vaca as a shield was committed in the perpetration of robbery. (Maj. opn., ante, fn. 4, at p. 140.)
Assuming, arguendo, the conceptual possibility of the majority’s analysis, its goal can be achieved only by writing into section 189 a third “kind” of first degree murder not provided for by the Legislature, i.e., a murder in which “the act which made the killing a murder attributable to the robber. . . was committed in the perpetration of the robbery.” (Maj. opn., ante, fn. 4, at p. 140.) To do so, however, expressly contradicts the Legislature’s provision that “all other [nonenumerated] kinds of murder are of the second degree.” (§ 189.)