I concur with the majority that second degree felony murder based on reckless or malicious possession of a destructive device cannot be ratchetted up to first degree murder by application of Penal Code section 189.1 (Maj. opn., ante, pp. 654-656.) Therefore, if defendant is guilty of murder, he is guilty of second degree murder. However, unlike the majority, I conclude the second degree murder convictions too should be reversed because the jury verdict may be based on what I deem an erroneous application of the felony-murder doctrine. Since the jury was instructed on both ordinary second degree murder and second degree felony murder, it is quite probable one or more jurors—and possibly the entire jury—found defendant guilty of felony murder but not of ordinary murder.
I find this an extraordinarily troubling case. Our research has been unable to uncover a single case anywhere in the country in which possession of a bomb or similar device has been held to justify a felony-murder prosecution. Likewise we have been unable to locate a single case in which a person has been convicted of felony murder because a bomb squad member was killed while attempting to disarm the defendant’s bomb. Surprisingly, we have been unable to find such a case even where the defendant had activated and planted the bomb. So the majority opinion represents a drastic expansion of the felony-murder doctrine not only for California but for American jurisprudence in general.
To comprehend just what a broad expansion of felony-murder doctrine the majority opinion embraces, it is well to remember what this case is and what it is not. It is not a case where the defendant armed and planted a bomb in a place with the intent of killing someone. Nor is it even a case where he placed a bomb in an unoccupied structure hoping to inflict property damage. Nor was he charged with making the bomb. He was not even charged with the felony of possessing with intent to injure. He was only charged with *657passive possession of the bomb, actually storing it in his own garage with the safety on. Had he been convicted of causing the bomb to come into existence, or of planting it in order to harm person or property, or even of possessing it with intent to injure this would have been an entirely different case.
This also is not a case where the bomb exploded while in defendant’s possession. No one wandered into defendant’s garage and accidentally ignited the bomb. Instead it exploded after law enforcement officers had taken full possession and control of the bomb in the name of the state and transported defendant to jail. So this is not even a case of present possession of a bomb. Instead the second degree felony-murder charge is predicated on defendant’s past possession of the bomb.
It was while the state had full possession and control of this bomb that the bomb squad decided to disarm rather than remove and destroy the device. At that point, defendant had lost the ability and right to personally disarm or destroy or remove the bomb. Defendant was precluded from even introducing evidence the bomb squad’s decisions and actions were grossly negligent and those decisions and actions rather than his own past possession of the device were the cause of the fatal explosion.
For the reasons explained below, the trial court committed prejudicial error in (1) instructing the jury it could convict defendant of second degree felony murder based on the reckless or malicious possession of a destructive or explosive device (§ 12303.2); (2) failing to recognize defendant’s felony of reckless or malicious possession had terminated before the acts occurred which caused the deaths and thus the felony-murder doctrine did not apply even if this felony could otherwise serve as the predicate for felony murder; (3) excluding evidence from which the jury could have found the victim’s acts rather than defendant’s past possession of the bomb were the legal cause of the victims’ death; (4) failing to instruct the jury on the lesser included offense of simple possession of a destructive device under section 12303. Each of these errors provides an independent ground for reversal.
I. Possession of a Destructive Device or Explosive Is Not a Felony Which Can Serve as a Predicate for Application of the Felony-Murder Doctrine.
First degree felony murder is a statutory crime defined by the Legislature. Second degree felony murder is not. Instead it is a creature of the California courts. (People v. Dillon (1983) 34 Cal.3d 441, 472, fn. 19 [194 Cal.Rptr. 390, 668 P.2d 697]; but see People v. Landry (1989) 212 Cal.App.3d 1428, *6581434 [261 Cal.Rptr. 254].) In any event, the Legislature has defined the felonies which will support first degree felony murder (§ 189) but for second degree felony murder that responsibility has fallen to the judiciary.
The California courts have set out a test for deciding whether a given felony belongs on this list. In order to support a conviction for second degree felony murder the predicate felony must be one “inherently dangerous to human life.” (People v. Patterson (1989) 49 Cal.3d 615, 625 [262 Cal.Rptr. 195, 778 P.2d 549].) A felony is “inherently dangerous” only if there is “ ‘a high probability that it will result in death.’ ” (Id., at p. 627.)
In holding possession of a bomb in violation of section 12303.2 is an inherently dangerous felony the majority reasons as follows: The abstract elements of the offense are the reckless or malicious possession of a bomb in proximity to people.2 In viewing these elements it is “not [necessary] to determine if it is possible (i.e. ‘conceivable’) to violate the statute without great danger.” The only question is whether “a violation of the statute involve[s] a high probability of death[.]” (Maj. opn., ante, p. 646, italics by maj.) The majority concludes, “[t]o recklessly or maliciously possess a bomb in a residential area, as appellant did, or in any place close to people, inherently involves a high probability of death.” The majority bases its conclusion on the “inherently dangerous” nature of bombs. (Ibid.)
I disagree with the majority’s conclusion for two reasons. The majority does not apply the test established by our Supreme Court for determining the inherent dangerousness of a felony. Furthermore, the majority expands criminal liability for the mere passive possession of a destructive device far beyond the moral culpability involved in such conduct.
The majority misstates the law when it says “our task is not to determine if it is possible (i.e. ‘conceivable’) to violate the statute without great danger.” (Maj. opn, ante, p. 646, italics by maj.) On the contrary, our task is exactly the one the majority rejects. As stated in People v. Burroughs (1984) 35 Cal.3d 824, 830 [201 Cal.Rptr. 319, 678 P.2d 894], the task of the reviewing court is “to determine whether the felony taken in the abstract, is inherently dangerous to human life ... or whether it possibly could be committed without creating such peril. ... In this examination we are required to view the statutory definition of the offense as a whole, taking into account even nonhazardous ways of violating the provisions of the law which do not necessarily pose a threat to human life.” (Accord People v. *659Henderson (1977) 19 Cal.3d 86, 94 [137 Cal.Rptr. 1, 560 P.2d 1180]; People v. Satchell (1971) 6 Cal.3d 28, 40 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383]; People v. Lopez (1971) 6 Cal.3d 45, 51-52 [98 Cal.Rptr. 44, 489 P.2d 1372].)
The court, in Patterson, did say “ ‘an inherently dangerous felony’ is an offense carrying ‘a high probability’ that death will result.” (49 Cal.3d at p. 627.) But the test for whether a “high probability” of death is present remains an examination of the elements of the predicate felony in the abstract, including whether it could possibly be committed without creating such peril. (49 Cal.3d at p. 621, citing People v. Henderson, People v. Burroughs, supra.)
The primary element in section 12303.2 is the possession of a destructive device or explosive, in this case a bomb.
Neither I nor the majority has found any case in California or any other jurisdiction holding the mere possession of a bomb or other destructive device to be an inherently dangerous felony. Indeed, I have been unable to find a case in any jurisdiction holding the mere possession of any article to be a predicate felony for purposes of the felony-murder rule.
On the other hand, I have found a number of cases holding mere possession of an article having an inherently dangerous nature not be a felony inherently dangerous to human life. (People v. Satchell, supra, 6 Cal.3d at p. 42 [possession of sawed-off shotgun]; People v. Williams (1965) 63 Cal.2d 452, 458 [47 Cal.Rptr. 7, 406 P.2d 647] [possession of methedrine]; State v. Brantley (1984) 236 Kan. 379 [691 P. 2d 26, 29] [possession of knife by prisoner]; State v. Underwood (1980) 228 Kan. 294 [615 P. 2d 153, 161] [possession of firearm by ex-felon].) In State v. Underwood, supra, 615 P.2d at page 161, the court reasoned, “it seems unlikely that mere possession, which has been defined as dominion and control over an object, and not its use, could be undertaken in so dangerous a manner that the prohibited possession would result in murder in the first degree.” Our Supreme Court, in Satehell, supra, stated: “Viewing the matter from the standpoint of inherent danger, we find it difficult to understand how any offense of mere passive possession can be considered to supply the element of malice in a murder prosecution.” (6 Cal.3d at p. 42.) I share that difficulty. In my view, a bomb stored in a garage is no more threatening to human life than a sawed-off shotgun or controlled substance sitting on a shelf. Until that passive possession ripens into a felonious act by a human agent, dangerous to life, there is no basis for the imputation of malice. (See Satchell, supra, 6 Cal.3d at pp. 42-43.)
*660I am not persuaded the fact the article in question is a bomb is sufficient to distinguish this case from cases holding mere felonious possession of an article is not an inherently dangerous felony.3 The majority relies on People v. Superior Court (Peebles) (1970) 6 Cal.App.3d 379, 382 [85 Cal.Rptr. 803], for the proposition “[a] bomb has special characteristics which obviously differentiate it from all other objects.” Those characteristics are that a bomb may go off accidentally, it is capable of wreaking enormous havoc on persons and property, its victims are often innocent bystanders and it is easily concealed. (Ibid.) But, as news stories constantly remind us, guns share these same characteristics and their possession is not, per se, an inherently dangerous felony. (Satchell, supra.) Furthermore, none of these characteristics explain why mere possession of a bomb should be considered an inherently dangerous felony. There are no facts in the record suggesting a bomb sitting undisturbed on a shelf might self-detonate. (The bomb in Peebles was being carried in an attache case by one of the defendants when it exploded.) (6 Cal.App.3d at p. 381.)
The second element of the offense requires possession must be “reckless or malicious.” Because this element is worded in the disjunctive, a person violates the statute if possession is either “reckless” or “malicious.” (People v. Heideman (1976) 58 Cal.App.3d 321, 334 [130 Cal.Rptr. 349].) As noted above, in determining the inherent dangerousness of a felony the court looks to the least offensive conduct that would satisfy the statutory element. Thus, the question here is whether “reckless” or “malicious” possession of a bomb necessarily involves a “high probability of death.” Or, to put it another way, is it possible to violate section 12303.2 without creating such peril? (People v. Burroughs, supra, 35 Cal.3d at p. 830.)
Clearly, it is possible to satisfy the reckless or malicious element of the statute without posing a threat to human life. (People v. Westoby (1976) 63 Cal.App.3d 790, 795 [134 Cal.Rptr. 97].) In Westoby the defendant was convicted of violating section 12303.2 “based upon evidence that when the [bomb] was found, it was ‘believed that one of the battery wires was disconnected,’ and that the timer had not been set; thus making it ‘readily apparent that the device . . . was inoperative and inert,’ since it ‘could not have been exploded without reconnecting the loose battery wire and setting the timer.’ ” The Court of Appeal rejected defendant’s argument the foregoing evidence was insufficient to satisfy the statutory requirement of reckless or malicious possession. The court reasoned: “One need not possess a destructive device already set to explode in order to violate Penal Code *661section 12303.2. The jury could reasonably have determined that Westoby’s possession was either reckless or malicious.” (63 Cal.App.3d at p. 795, italics in original.) Thus, in Westoby, defendant’s possession of the bomb was held to satisfy the reckless or malicious element of section 12303.2 where his possession of the bomb posed no danger to human life because it “ ‘was inoperative and inert’ [and] ‘could not have been exploded without reconnecting the loose battery wire and setting the timer.’ ” (63 Cal.App.3d at p. 795.)
Similarly, in the case before us, defendant was convicted of violating section 12303.2 where the undisputed evidence showed the bomb was stored in his garage with its safety switch on.
The inescapable conclusion from Westoby and the facts of the case before us is that reckless or malicious possession of a destructive device, as that term is used in section 12303.2, does not necessarily require possession of a device which is in a condition to pose an immediate threat to human life. Thus, viewed in the abstract the felony of “reckless or malicious” possession can be committed without posing a “high probability of death.”
Of course, if possession is of an extremely reckless nature, manifesting a conscious disregard for human life a jury might find implied malice under basic murder principles. But under prevailing California law the jury cannot do so through application of the felony-murder rule. The “recklessness” or “maliciousness” of the possession does not convert the crime of possession into a proper predicate felony for a felony-murder charge. Instead, the law allows that “recklessness” or “maliciousness” to be used to establish the element of malice in a prosecution for ordinary murder. (People v. Satchell, supra, 6 Cal.3d at p. 42.)
The final element, that possession is in proximity to people, adds nothing to the statute in terms of inherent dangerousness to human life. Due to the broad wording of the statute (see maj. opn., ante, at pp. 645-646), it would be virtually impossible to possess a bomb and not satisfy the proximity element. Furthermore, the proximity of at least one person, the victim, is an implicit element in every felony on which felony murder is predicated.
If this were a case in which defendant had taken a step beyond mere possession, and was engaged in committing some act involving a high probability of death at the time the officers suffered their fatal injuries, I would have no trouble affirming the second degree felony-murder conviction as the law of felony murder now stands. Or, if it had been proved defendant *662possessed the bomb with the intent to commit an act having a high probability of death at the time these officers suffered their fatal injuries, I would concur in the majority’s judgment.4
But here we have a case which boils down to the mere passive possession by the defendant of a destructive device, a bomb, the maximum sentence for which is six years in prison. In my view, allowing such a crime to serve as a predicate for a murder conviction “erodes the relation between criminal liability and moral culpability.” (People v. Washington (1965) 62 Cal.2d 777, 783 [44 Cal.Rptr. 442, 402 P.2d 130].) Up until now, the trend in California, led by our Supreme Court, has been to limit, not expand, the felonies which can serve as predicates for a second degree felony-murder conviction. (See People v. Patterson, supra, 49 Cal.3d at pp. 622, 627; People v. Burroughs, supra, 35 Cal.3d at pp. 829, 832-833.) The few felonies the court has found to be inherently dangerous share characteristics which are totally absent from a felony whose principal element is passive possession of a dangerous article. First, as the court noted in Burroughs, supra, 35 Cal.3d at page 832, the felonies that the court has found support a murder conviction have been “tinged with malevolence.” (E.g., poisoning food, drink or medicine with intent to injure, People v. Mattison (1971) 4 Cal.3d 177 [93 Cal.Rptr. 185, 481 P.2d]; wilful and malicious burning of an automobile, People v. Nichols (1970) 3 Cal.3d 150 [189 Cal.Rptr. 271, 474 P.2d 673].) Second, the court has endeavored to maintain a parity between felonies legislatively recognized as supporting first degree felony murder and felonies judicially recognized as supporting second degree felony murder. (People v. Patterson, supra, 49 Cal.3d at p. 626, fn. 8.) Third, every such felony has involved an affirmative act on the part of the defendant, which act posed an immediate and inherent threat to human life. (E.g., furnishing narcotics, People v. Poindexter (1958) 51 Cal.2d 142 [330 P.2d 763]; poisoning food, drink or medicine, People v. Mattison, supra; burning an automobile, People v. Nichols, supra.) Indeed, the only time the court was faced with a felony-murder charge in which the predicate felony involved mere possession of a dangerous instrument the court resoundingly rejected the charge stating, “mere possession in itself—ignoring the propensities and conduct of the possessor—is essentially neutral in its intentional aspect and should not serve as the basis for the imputation of malice.” (People v. Satchell, supra, 6 Cal.3d at p. 43, italics in original.)
The majority’s opinion in this case is the first ever in the country, so far as I can determine, holding the mere felonious possession of an article is *663sufficient to pose “a high probability” of death. For the reasons set forth above, I respectfully dissent from that holding.5
II. The Deaths of the Police Officers Were Not “Committed in the Perpetration of” a Felony Because Defendant’s Felonious Possession of the Bomb Had Terminated and the State Had Acquired Possession Before the Officers Exploded the Bomb; Defendant’s Possession of the Bomb and the Explosion Which Killed the Officers Were Not Part of One Continuous Transaction.
Felony murder requires the killing to have been “committed in the perpetration of or attempt to perpetrate” the felony. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) §§ 470, 472, pp. 528-582, explaining this language in § 189.) While our Supreme Court has rejected “any technical inquiry concerning whether there has been a completion, abandonment, or desistence of the felony before the homicide was completed” (People v. Chavez (1951) 37 Cal.2d 656, 669-670 [234 P.2d 632]), it also has recognized felonies do terminate at some point. In robbery, by far the most common predicate felony in felony-murder prosecutions, the felony ends for purposes of the felony-murder rule when the defendant escapes to a “place of temporary safety.” (People v. Salas (1972) 7 Cal.3d 812, 822 [103 Cal.Rptr. 431,500 P.2d 7,58 A.L.R.3d 832]; People v. Milan (1983) 9 Cal.3d 185, 195 [107 Cal.Rptr. 68, 507 P.2d 956].) A killing which occurs after that time—a shootout at the robber’s second hideout or a homicide in a squabble over the proceeds—is not considered to be committed in the course of the robbery and thus is not felony murder even though the robbery may be a “but for” cause of the death. Presumably, the robbery also is terminated for purposes of the felony-murder rule when the defendant’s attempt has been thwarted, and he has been arrested and incarcerated in jail. The death of an officer run over and killed by a motorist while leaving the scene after the robber had been taken to jail would not be charged to the robber as a felony murder arising out of his unsuccessful crime.
In this case defendant’s possession of the bomb—and thus his felony— was over and done with long before the acts which killed the officers occurred. Law enforcement officers had taken full possession and control of *664the bomb in the name of the state. Defendant himself had been arrested, placed in custody and transported to the police station. It was while the bomb was in the possession of the state—not the defendant—that this fatal explosion occurred. The bomb squad did not consider this bomb something still in defendant’s possession they were attempting to disarm for defendant’s benefit. If he had called from the jail and asked them to stop working on the bomb and return it to him they would have laughed in his face. Nor would they even have returned the dismantled bomb to him had they succeeded in their efforts to neutralize it. No, the state had taken complete dominion and control of this dangerous apparatus and defendant’s possession and thus his felony had terminated long before the bomb squad started taking it apart. Thus, this is far different from a situation where an accidental fire ignited the bomb and killed a neighbor or where an inquisitive child snuck into the garage and accidentally blew himself up as he played with the bomb while the bomb was still in defendant’s possession.
Assuming mere passive possession of a dangerous article is to be considered a predicate felony for purposes of the second degree felony-murder rule that crime likewise must have a termination point. For this specie of crime it requires no “technical inquiry” to identify the critical point because the “transaction” involved is not comprised of a series of complex, often simultaneous actions by several persons. (As might be expected in the typical fast-moving robbery or similar active felony, most claims the felony terminated before the killing occurred have involved surrenders or arrests, often momentary, instants before the victim’s death. (See, e.g., People v. Mitchell (1964) 61 Cal.2d 353, 362 [38 Cal.Rptr. 726, 392 P.2d 526] [defendant who committed robbery guilty of first degree felony murder despite evidence he attempted to surrender just before shooting broke out] and see cases collected in Annot., What Constitutes Termination of Felony for Purpose of Felony-Murder Rule (1974) 58 A.L.R.3d 851, 902-906.)
In a passive possession the “transaction” is simply defendant’s possession of the dangerous article. It begins when he takes possession of the article and ends when he gives up or is deprived of possession of the article. Here defendant’s possession of the bomb was terminated, albeit involuntarily, when the officers took possession of it, arrested defendant and took him to jail. He was in the same position as the unsuccessful robber who is in custody when the officer is run over by a motorist while leaving the robbery scene.
The fact defendant’s possession was over and his felony terminated before the acts which produced the deaths occurred has the same consequences for defendant’s liability under the felony-murder rule as it would for a robber who had reached a “place of temporary safety” before the acts which *665produced death occurred. The felony-murder rule simply does not apply to the postfelony deaths even though one can say that “but for” defendant’s felony—the robbery in one case, the possession of the bomb here—those subsequent deaths would not have occurred. Of course, as in the completed or terminated robbery situation, the defendant here may well be prosecuted for murder because of the deaths of these bomb squad members under another theory. He simply cannot be prosecuted under a felony-murder theory where the predicate felony was over before the acts producing the deaths occurred.
Nor is this a case where the “killing and felony are parts of one continuous transaction.” (People v. Chavez, supra, 37 Cal.2d at p. 670.) Defendant was not charged with any crime which involved introducing the bomb into the stream of human activity and thus setting something in motion which had to be stopped. He was not charged with manufacturing or transporting the bomb. He was not even charged with possessing the bomb with intent to injure a person or destroy property. (See discussion ante, fn. 4.) This bomb was not ticking. It was stored in the back of a cabinet in defendant’s garage with its safety switch on.
Defendant’s transaction of felonious possession of the bomb came to an end when he was arrested and taken into custody. At that point possession of the bomb passed to the police department. It was not until some time later, when the police attempted to disarm the bomb, that it exploded, killing the officers. Thus under the facts of this case it cannot be said defendant’s possession of the bomb and the deaths of the police officers were parts of one continuous transaction. The state had taken complete possession and control of the bomb. Since its safety was on, the bomb squad could have waited hours or days to deal with this device. They could have transported it to an entirely different place. They could have used any of a variety of methods to neutralize or destroy the bomb they now possessed. That the acts producing the deaths occurred on defendant’s premises and even on the same day as defendant’s possession of the bomb terminated was entirely determined by decisions made by the present possessors of the bomb, the state’s agents. If there ever was discontinuity between a defendant’s past felonious transaction and the deaths ascribed to that transaction, it is in this case.
Furthermore, if the “transaction” of mere passive possession, albeit reckless or malicious—which is all this defendant is charged with—is deemed to continue beyond defendant’s actual possession, the result is to expand the felony-murder rule beyond any logical relationship between criminal liability and moral culpability. To illustrate, assume a third person stole or otherwise acquired possession of this bomb and stored it in his garage. The *666police discover it, arrest the third person, take possession of the bomb, call the bomb squad, and a bomb squad member is killed while attempting to dismantle it. Are both the defendant in this case and the third person guilty of felony murder for that death? They both are guilty of past felonious possession of the bomb, albeit at different times, but neither possessed it at the time the acts producing the death occurred. And what if the bomb passed through 10 people’s hands before the police discovered it and attempted to dismantle it? Are all 10 guilty of felony murder? They certainly are all past felonious possessors of this same bomb.
Or is only the “immediate past possessor” to be held responsible? If so, on what basis in morals or logic do we distinguish the person from whom the police took the bomb which killed them and someone earlier in the chain of custody? The first possessor and the last, and those in between, are all equally guilty of the same crime as to the same destructive device and each contributed as much—and as little—as any other to the deaths that ultimately occurred. It is one thing to trace liability for felony murder through several hands to the person who manufactures a bomb. It is quite another to fix that kind of permanent criminal liability on someone who only possessed the bomb for a period of time before it passed into another’s possession and, while in that other person’s possession, exploded and killed that person. Yet this is precisely what the majority opinion does in this case.
The foregoing examples illustrate why our Supreme Court has taken the view “the felony murder doctrine be given the narrowest possible application” {People v. Satchell, supra, 6 Cal.3d at p. 34) and why mere passive possession cannot be deemed to continue beyond defendant’s actual possession of the object. To apply the felony-murder rule to instances of past possession is inconsistent with its ostensible purpose: “to deter those engaged in felonies from killing negligently or accidentally.” {Ibid., italics added.) Applying these principles to the present case, I would hold defendant cannot be convicted of murder under a second degree felony-murder theory.
III. It Was Prejudicial Error to Exclude Evidence Relevant to the Victims’ Gross Negligence or Recklessness on the Issue of Causation.
Defendant contends the trial court denied him the opportunity to establish the police officers’ conduct in dismantling the bomb was a superseding cause of their deaths because the court excluded evidence of the officers’ gross negligence and recklessness. The majority opinion evades this issue claiming defense counsel failed to apprise the trial court of the substance, purpose and relevance of the excluded evidence. (Evid. Code § 354.) The record does not support the majority’s claim.
*667Admissibility of evidence of the police officers’ conduct on the issues of negligence and causation was argued to the trial judge at great length before and during trial. Essentially the People argued the defense was attempting to introduce irrelevant evidence of victim negligence while the defense argued it was attempting to introduce evidence of the victims’ conduct to negate the element of causation. The debate over the admissibility of conduct evidence involved a written motion by the People to exclude the subject evidence with points and authorities by both parties, two pretrial hearings, further argument at the beginning of the trial and argument on the People’s objections to the proffered evidence. It would serve no purpose to quote these portions of the record at length. Suffice it to say that on the basis of the pretrial arguments, the questions themselves and the colloquies with the trial judge, the court was fully informed the defendant’s purpose in offering the evidence was to negate the element of causation by showing gross negligence or reckless behavior on the part of the police officers. This is not a case like People v. Whitt (1990) 51 Cal.3d 620, 648 [274 Cal.Rptr. 252, 798 P.2d 849], cited by the majority, where “the phraseology is so inherently broad and the range of conceivable answers so vast, that we cannot know whether [the] response might have influenced [the verdict].”
The excluded evidence is discussed in detail in the majority opinion, ante, at pages 635 through 640 and need not be repeated here. In summary, the trial court refused to allow defendant to introduce evidence that a police investigation of the explosion which killed the officers concluded, “a tool from [the deceased officers’] kits was a factor that caused their death.” The court also refused to admit the testimony of a neighbor who heard Officer McCree remark, before attempting to dismantle the bomb, the bomb was “a piece of cake.” In addition, the court refused to allow the testimony of defendant’s explosives expert who would have testified the safer alternative under the facts of this case was to remove the bomb to a place where it could be harmlessly destroyed by remote control.
The trial court excluded the foregoing evidence on the ground the victim’s intervening negligence is not a defense to homicide. The court’s exclusion of the evidence would have been correct if the purpose of the evidence was merely to show the officers were negligent in dismantling the bomb. (See, People v. Armitage, (1987) 194 Cal.App.3d 405, 420 [239 Cal.Rptr. 515]; 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 397, p. 454.) Here, however, the purpose was not to show the officers were negligent in dismantling the bomb but to show their negligence broke the chain of causation thus relieving defendant of liability for their deaths. Evidence of causation is always relevant in a homicide case because “ ‘[c]ausal relation is the universal factor common to all legal liability ... in a breach of contract as in *668murder.’ ” (People v. Harrison (1959) 176 Cal.App.2d 330, 333-334 [1 Cal.Rptr. 414], citation omitted.) Felony murder is no exception. “As long as the homicide is the direct causal result of the [felony] the felony-murder rule applies whether or not the death was a natural or probable consequence of the [felony].” (People v. Stamp (1969) 2 Cal.App.3d 203, 210 [82 Cal.Rptr. 598]; and see People v. Caldwell (1984) 36 Cal.3d 210, 219 [203 Cal.Rptr. 433, 681 P.2d 274].)6
The test for causation was stated in People v. Harris (1975) 52 Cal.App.3d 419, 427 [125 Cal.Rptr. 40] as follows: “If an intervening cause is a normal and reasonably foreseeable result of defendant’s original act the intervening act is ‘dependent’ and not a superseding cause, and will not relieve defendant of liability.” Thus, although it is true the victim’s intervening negligence is generally not a defense to homicide, the victim’s negligence does affect causation “if it may be said that the defendant’s criminal act was only a remote cause, and that the sole proximate cause was the negligent or reckless conduct of the victim . . . .” (1 Witkin & Epstein, supra, § 397, p. 454; and see People v. Pociask (1939) 14 Cal.2d 679, 687 [96 P.2d 788] and People v. Lett (1947) 77 Cal.App.2d 917, 921 [177 P.2d 47].) Numerous cases from California and other jurisdictions, as well as respected commentators, have recognized the possibility of the victim’s intervening negligence affecting causation to such an extent the defendant is relieved of liability. (See, e.g., People v. Pociask, supra, 14 Cal. 2d at p. 687; People v. Armitage, supra, 194 Cal.App.3d at pp. 420-421; People v. Lett, supra, 77 Cal.App.2d at p. 921; Carbo v. State (1908) 4 Ga.App. 583 [62 S.E. 140, 141]; Focht, Proximate Cause in the Law of Homicide—With Special Reference to California Cases (1938) 12 So.Cal.L.Rev. 19, 34; Leavens, A Causation Approach to Criminal Omissions (1988) 76 Cal.L.Rev. 547, 571.) However, in order for the victim’s conduct to be a superseding cause it must have been “highly extraordinary” under the circumstances. (People v. Armitage, supra, 194 Cal.App.3d at pp. 420-421; see also People v. Hebert (1964) 228 Cal.App.2d 514, 521 [39 Cal.Rptr. 539] [cause is superseding if “an extraordinary and abnormal occurrence.”])
Given the obvious difficulty of establishing the victim’s conduct was a superseding cause it is not surprising this defense has remained largely a *669theoretical one. I have found only one case in which a defendant’s homicide conviction was reversed on the ground of the victim’s own conduct. In Carbo v. State, supra, 62 S.E. 140, the defendant’s criminal negligence created the risk of explosion in a building. The victim was fully warned of the danger and was urgently requested to stay out. He went in anyway and was killed in the subsequent explosion. The defendant’s conviction for involuntary manslaughter was reversed.
The facts in Carbo suggest gross negligence or recklessness on the part of the victim may constitute the type of “highly extraordinary” conduct or “abnormal occurrence” which will constitute a superseding cause of death. Although no California case deals with gross negligence or recklessness of the victim, the case of People v. McGee (1947) 31 Cal.2d 229 [187 P.2d 706] discusses the intervening conduct of a third party and suggests the kind of showing of gross negligence or recklessness which may, under certain circumstances, constitute a superseding cause.
In McGee defendant shot the victim in the abdomen. The victim died the next day as a result of hemorrhage from the bullet wound. On appeal, the defendant argued the trial court erred in excluding evidence tending to show the proximate cause of death was not the bullet wound but the manner in which the wound was treated. The court stated, “ ‘The proper, and probably generally accepted, view [is] that mere negligence [in treating a wound] is no defense even though it is the sole cause of death because it is a foreseeable intervening cause. But death caused by grossly improper treatment is not the proximate consequence of the defendant’s injury unless the injury is an actual contributing factor at the time of death, because such treatment is an unforeseeable intervening cause.’ ” (Id. at p. 240, quoting from Focht, Proximate Cause in the Law of Homicide, supra, 12 So.Cal.L.Rev. 19, 34, citations omitted.) As Professor Leavens put it, “Simple negligence, although hopefully unusual, is sufficiently ordinary that we more properly classify it as part of the normal background .... We usually come to the opposite conclusion for intentional or grossly negligent malpractice.” (Leavens, A Causation Approach to Criminal Omissions, supra, 76 Cal.L.Rev. at p. 571.)
The People contend the trial court did not err in excluding evidence of the officers’ conduct in dismantling the bomb because negligence on the part of police officers responding to harm or a threat of harm initiated by the defendant was reasonably foreseeable. The People rely on cases involving police pursuit of fleeing felons.
In People v. Pike (1988) 197 Cal.App.3d 732 [243 Cal.Rptr. 54], two police cars pursuing Pike in a high-speed chase collided, resulting in the *670death of one of the officers. Although the evidence reflected the deceased officer’s negligence contributed to the collision, the court held the officer’s conduct was not a superseding cause. It was reasonably foreseeable that in a high-speed chase initiated by the defendant one or both of the officers might lose control of his vehicle or collide with another vehicle. “The probability that this might result... is sufficient to establish that defendant’s conduct was a cause that, in the natural and continuous sequence, produced Officer Esquibel’s death. . . .” (Id., at p. 750.)
People v. Harris, supra, also dealt with a collision involving a police vehicle engaged in a high-speed chase with defendant. In Harris the police vehicle collided with a private automobile, killing one of the passengers. The trial court set aside the information charging defendant with vehicular manslaughter on the ground defendant’s conduct was not the proximate cause of the decedent’s death. The Court of Appeal reversed, stating:
“The evidence adduced at the preliminary hearing indicates that defendant initiated an unlawful and reckless course of speed on public streets and then continued it for 4.4 miles in an effort to evade law enforcement officers who, using emergency sirens and red lights, tried to apprehend him. Toward the end of the high speed chase a third law enforcement unit was involved in apprehending defendant. His speed at times exceeded 100 miles per hour. It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase.” (52 Cal.App.3d at p. 427.) Although it found sufficient evidence to justify a prosecution, the court in Harris specifically noted the question whether the police officer’s conduct during the chase was so “disconnected and unforeseeable as to be a superseding cause . . . is a question of fact to be determined by the trier of fact beyond a reasonable doubt.” (Id., at p. 428, fn. 4.)
While ordinary negligence on the part of one responding to the harm or threat of harm caused by the defendant may constitute part of the “natural and continuous sequence,” gross negligence or recklessness by the victim may constitute a superseding cause. The jurors in the present case were entitled to have the benefit of the defense theory and evidence before them so that they could make an informed judgment on the issue of proximate cause.
Exclusion of defendant’s evidence on the issue of causation was prejudicial error.
*671The state bears the burden of proving beyond a reasonable doubt every element of the offense charged. (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068].) Here, the jury was correctly instructed, “To constitute murder there must be, in addition to the death of a human being, an unlawful act which was the proximate cause of that death.” Thus, although the jury was instructed it must find defendant’s act was the proximate cause of the officers’ death, the only evidence on causation it was allowed to consider was the prosecution’s. A defendant cannot, constitutionally, be denied the right to present probative evidence rebutting an element of the crime. (People v. Wetmore (1978) 22 Cal.3d 318, 321 [149 Cal.Rptr. 265, 583 P.2d 1308].) By ruling the defendant’s evidence as to causation inadmissible, the trial court effectively took the determination of proximate cause away from the jury. (Cf. People v. Marsh (1962) 58 Cal.2d 732, 741 [26 Cal.Rptr. 300, 376 P.2d 300].) It is no answer to say the state’s evidence, standing alone, was sufficient to establish the element of causation beyond a reasonable doubt where the evidence which might have created a reasonable doubt was excluded.
Because the trial court’s error denied defendant a right fundamental to a fair trial—the right to present a defense—the murder convictions must be reversed unless we can say the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Marsh, supra, 58 Cal.2d at p. 741.) For the reasons discussed below, in this case it cannot be said exclusion of the defendant’s evidence was harmless beyond a reasonable doubt.
This case is distinguishable from cases involving high speed police pursuits of fleeing criminals. Nothing in the facts suggests the situation in defendant’s garage was infused with excitement or tension. On the contrary, Officer McCree’s remark dismantling the bomb would be “a piece of cake” suggests a very relaxed atmosphere prevailed. Unlike officers confronted with a person driving in a wild and dangerous manner on the public highways, the officers here were not faced with an exigent circumstance. The evidence shows the bomb could be safely handled even by a nonexpert, as Officer Asvonanda demonstrated when he removed it from the cabinet and set it on the garage floor. The bomb had no timing device and its safety mechanism was in place.
Using a defective tool to defuse a bomb suggests gross negligence if the officers knew or should have known the tool was defective. Whether the tool was defective before the bomb blast and the state of the officers’ knowledge about the tool is unknown because the trial court refused to allow defendant to inquire on this subject. Officer McCree’s statement the bomb was “a piece *672of cake” may have been intended to relieve the anxiety of the neighbors or it may have indicated Officer McCree was approaching the task of dismantling the bomb with scant care. The fact the bomb had no timing device and its safety mechanism was on suggests dismantling it in defendant’s garage, as opposed to transporting it for safe destruction by remote control may have been an “extreme departure from the ordinary standard of conduct.” But, again, defendant was not allowed to examine the police officer who investigated the explosion or his own expert witness concerning the deceased officers’ standard of conduct.
It is well established under our constitution “[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” (Chambers v. Mississippi (1973) 410 U.S. 284, 302 [35 L.Ed.2d 297, 312, 93 S.Ct. 1038].) The testimony rejected by the trial court went to an essential element of the crime of homicide. That testimony was critical to defendant’s defense. In these circumstances, where a constitutional right directly affecting the ascertainment of guilt is implicated, the conclusion is inescapable defendant was denied a trial in accord with fundamental standards of due process. In reaching this conclusion I am by no means suggesting the evidence defendant sought to introduce would have established, as a matter of law, the officers’ conduct was a superseding cause of their deaths thereby relieving defendant of criminal liability. Nor is it my view a jury would or should reach such a conclusion from the evidence—only that it could. But the fact that it could reach such a conclusion had it heard the defendant’s evidence entitles the defendant to a new trial on the murder charges.
IV. Failure to Instruct on the Lesser Included Offense of Simple Possession of a Destructive Device Was Prejudicial Error.
The majority correctly holds it was error not to instruct the jury on simple possession of a destructive device under section 12303. (Maj. opn., ante, pp. 648-649.) Yet the majority also finds this error was harmless because the factual question posed by the omitted instruction, whether possession was without recklessness or malice, was necessarily resolved against defendant by the jury’s finding true the special circumstance of murder by bomb. A finding of this special circumstance required the jury to find “[t]he defendant knew or reasonably should have known his act. . . would create a great risk of death to a human being. . . .” (Cf. People v. Sedeno (1974) 10 Cal.3d 703, 715 [112 Cal.Rptr. 1, 518 P.2d 913].)
I find the majority’s reasoning circuitous. As previously noted, the predicate felony in this case was the reckless or malicious possession of a *673destructive device. (§ 12303.2.) If the jury based its finding of second degree murder on the prosecution’s second degree felony murder theory it necessarily found, as it was instructed, defendant committed “a felony inherently dangerous to human life.” Having found the defendant committed a felony inherently dangerous to human life, to be consistent the jury would have to find defendant had the requisite mental state for the special circumstances: “The defendant knew or reasonably should have known that his act . . . would create a great risk of death to a human being. . . .”
In other words, the special circumstance finding was an inevitable consequence of the initial conviction of reckless or malicious possession of a destructive device. The special circumstance finding is not an independent finding of reckless or malicious possession. We cannot know what the jurors would have done if properly instructed about the lesser included offense of simple possession merely because they said “ditto” when asked a second time about one of the essential elements of the greater offense. Therefore the Sedeño harmless error analysis does not apply in this case.
Furthermore, People v. Westoby, supra, relied on by the majority, is not applicable to the case before us. In Westoby the jury was instructed on reckless or malicious possession under section 12303.2 and simple possession of an explosive under Health and Safety Code section 12305 but the jury was not instructed on simple possession of a destructive device under section 12303 (the same error as in our case). The court in Westoby reasoned the error in not instructing on simple possession under section 12303 was harmless because the jury specifically found defendant not guilty of simple possession under Health and Safety Code section 12305 (63 Cal.App.3d at pp. 794,796). The court found harmless error under Sedeño because the jury, given the opportunity to find defendant guilty of possession but without recklessness or maliciousness did not do so. Instead the jury found defendant guilty of a felony requiring possession with recklessness or maliciousness. (Id., at p. 796.)
In the case before us, unlike Westoby, the jury was not given an opportunity to find defendant guilty of a crime involving possession but without recklessness or maliciousness. Therefore the error was prejudicial.
This error not only requires reversal of defendant’s conviction of malicious and reckless possession of a destructive device, it also infects the felony-murder conviction. Neither the trial judge nor the majority opinion considered whether the simple possession felony was “inherently dangerous to human life” and could support a felony-murder prosecution. For reasons discussed above, I am convinced a malicious or reckless possession, especially one which is past, cannot serve as the predicate for a felony-murder *674conviction. Those arguments apply with even greater force where the underlying felony is simple possession. Thus, when the trial court denied the jury the opportunity to return a verdict of simple possession, it likewise deprived the defendant of the opportunity for a jury verdict on that count which probably would have precluded an instruction on felony murder. Moreover, this instructional error remains prejudicial as to the felony-murder count no matter how one rules on the question of using malicious and reckless possession to support a felony-murder count.
Conclusion
It is an understatement to call this an important case in the area of felony murder. The majority opinion has stretched the bounds of that concept in several directions. The only question is whether the opinion has gone too far in one or all those directions. I feel it has. My esteemed colleagues obviously feel otherwise.
Contrary to prior California law, the majority opinion holds possession of a dangerous object, without any act or intent to use the object, can supply the predicate for a felony-murder conviction. The opinion then lays a felony-murder curse on the possessor which does not go away even after the felony has terminated, the possessor no longer has possession, and the state has assumed complete dominion over the device. It next denies the former possessor an opportunity to prove the deaths resulted from an independent superceding cause attributible to those who had taken possession from him. And finally, the opinion finds harmless the failure to give a lesser-included instruction which was supported by the evidence and which, if given, might have nullified the felony-murder theory employed in this case, even assuming that questionable theory has merit.
For any and all these reasons, I would reverse this conviction. Nonetheless, while I am convinced this conviction requires reversal because of the misapplication of second degree felony-murder doctrine, I in no way mean to imply this defendant cannot be prosecuted for murder for the deaths of these two bomb squad experts. But the required malice must be proved. Neither the felony alleged here—nor the simple possession which was erroneously withheld from the jury—can be substituted for that vital mental element of the crime of murder.
The petitions of both respondent and appellant for review by the Supreme Court were denied April 16, 1992.
All statutory references are to the Penal Code unless otherwise noted.
Section 12303.2 makes it a felony to possess a “destructive device” or explosive including, but not limited to, bombs. (See § 12301.) I interpret the majority opinion as limited to possession of bombs. (See People v. Patterson, supra, 49 Cal.3d at pp. 624-625.)
I will concede, for the sake of argument, there could be articles whose felonious possession would be inherently dangerous to human life; a barrel leaking a highly toxic substance, for example.
It is worth noting defendant was not charged with felony murder based on section 12303.3 which makes it a felony to possess a destructive device “with intent to injure, intimidate, or terrify any person, or with intent to wrongfully injure or destroy any property.”
Because the People relied on both traditional second degree murder and second degree felony murder the error in instructing the jury on second degree felony murder requires reversal. (People v. Green (1980) 27 Cal.3d 1, 69 [164 Cal.Rptr. 1, 609 P.2d 468]; People v. Satchell, supra, 6 Cal.3d at pp. 31, 43.)
On remand the People would be free to retry the defendant on the charge of second degree murder based on traditional murder principles. (People v. Satchell, supra, 6 Cal.3d at p. 42, [see maj. opn., ante, pp. 652-653].)
The trial court correctly ruled defendant’s mere possession of the bomb did not eliminate the requirement the prosecution establish possession of the bomb was the proximate cause of the officers’ death. In civil actions for damages resulting from ultrahazardous activities, California does not follow the Restatement rule the defendant is strictly liable although the harm results from unexpected reckless conduct. (Rest.2d Torts, § 522.) Rather, in California, “an essential element of a plaintiff’s cause of action, whether based on negligence or strict liability, is the existence of a causal connection between defendant’s act and the injury which plaintiff suffered.” (Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 780 [56 Cal.Rptr. 128, 29 A.L.R.3d 538]; and see Luthringer v. Moore (1948) 31 Cal.2d 489, 495, 501 [190 P.2d 1]; BAJI No. 6.60.)