I dissent from the majority’s holding that furnishing phencyclidine (PCP) is not an inherently dangerous felony for purposes of second degree felony murder.1 Based on a combination of reasoning a fellow colleague recently characterized as prestidigitation,2 reliance on the now discredited decision in Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019 [213 Cal.Rptr. 712],3 and a misstatement of the holdings in several Supreme Court decisions, the majority concludes, using *1102its own philosophical point of view, that furnishing PCP is not a felony inherently dangerous to human life, thereby rendering remand to the trial court for a determination of the same question a complete waste of time and judicial resources. In my opinion the majority’s reasoning and result are ludicrous.
A critical issue in this case is the standard of review to be applied. The majority spends most of its time and effort determining that the proper standard is de novo review. Yet, as is acknowledged, neither party raised nor addressed this issue in their briefs. Therefore, I believe under Government Code section 68081* **4 this court will ultimately have to grant a rehearing in order to allow the parties to brief the issue.
Since it is clear the majority has an inaccurate understanding of the rules governing appellate review, I start with a summary of the applicable general principles. First, we always begin with the presumption that the judgment of the lower court is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193]; Walling v. Kimball (1941) 17 Cal.2d 364, 373 [110 P.2d 58]; People v. One Parcel of Land (1991) 235 Cal.App.3d 579,583 [286 Cal.Rptr. 739]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 268, pp. 276-277.) Regardless of the standard of review employed, it is the appellant’s obligation to establish that legal error occurred and that it was prejudicial to his or her cause. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [240 Cal.Rptr. 872, 743 P.2d 932]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [157 Cal.Rptr. 874, 599 P.2d 65]; Tupman v. Haberkern (1929) 208 Cal. 256, 263 [280 P. 970]; In re Marriage of Behrens (1982) 137 Cal.App.3d 562, *1103575 [187 Cal.Rptr. 200]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712 [152 Cal.Rptr. 65]; 9 Witkin, op. cit. supra, § 325, at pp. 335-336.)
Of course, the appropriate standard of review will vary from case to case. Where an appellant challenges the sufficiency of the evidence to support the lower court’s ruling we decide whether substantial evidence supports the judgment. (People v. Kelly (1992) 1 Cal.4th 495, 528 [3 Cal.Rptr.2d 677, 822 P.2d 385]; People v. Johnson (1980) 26 Cal.3d 557, 562, 576-577 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) In others, such as the interpretation of statutes or contracts where no conflicting extrinsic evidence has been presented, the question is one of law and we are not bound by the trial court’s construction. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839]; 9 Witkin, supra, § 242, at pp. 247-249.) A third approach is the abuse of discretion standard. (Shamblin v. Brattain, supra, 44 Cal.3d 474, 478-479; 9 Witkin, supra, Appeal, § 275, p. 286.)
But in some cases, such as the present one, an appellate court is presented with a mixed question of law and fact.
“[T]he concerns of judicial administration—efficiency, accuracy, and precedential weight—make it more appropriate for a [trial] judge to determine whether the established facts fall within the relevant legal definition, [and] we should subject his determination to deferential, clearly erroneous review.” (People v. Louis (1986) 42 Cal.3d 969, 986-987 [232 Cal.Rptr. 110, 728 P.2d 180].) As Louis points out, the key to determining the standard of review that should be applied when mixed questions of law and fact are presented , is to choose the standard under which the concerns of judicial administration will best be furthered. (Ibid.) “If application of the rule of law to the facts requires an inquiry that is ‘essentially factual,’ [citation]—one that is founded ‘on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct,’ [citation]—the concerns of judicial administration will favor the [trial] court, and the [trial] court’s determination should be classified as one of fact reviewable under the clearly erroneous standard.” (Id. at p. 987, quoting United States v. McConney (9th Cir. 1984) 728 F.2d 1195, 1200-1203, fns. omitted.)
The majority cites authority for the proposition that an appellate court’s deferral to trial court discretion is appropriate only in matters which are “extremely fact intensive. . . .” (Maj. opn., ante, p. 1092.) But, the matter we are faced with here is fact intensive. Two expert witnesses testified, one for the prosecution and one for the defense, and each rendered a markedly different opinion as to the ultimate issue of whether furnishing PCP is inherently dangerous. Much scientific and anecdotal evidence was cited in *1104support of each opinion. This necessitated the trier of fact, here the court, to weigh the testimony and the relative credibility of each witness in arriving at a decision. “Where the evidence is in conflict, the appellate court will not disturb . . . the findings of the trial court. The presumption being in favor of the judgment [citation], the court must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference and resolving conflicts in support of the judgment.” (9 Witkin, supra, Appeal, § 278, at p. 289.)
Here, resolution of the conflicting expert testimony was an essential predicate to a determination of whether furnishing PCP creates a high probability of death and was a task best suited for the trial court. But, the majority attempts to sidestep these issues of fact and a presumption in favor of the judgment by finding that since both experts rendered an opinion regarding the ultimate issue in this case, neither opinion need be given deference. The majority then contradicts itself by stating that the experts’ conclusions did not deal with the precise question presented upon remand. (Maj. opn., ante, pp. 1094-1095.) This is illustrative of the majority’s efforts to avoid having to characterize any of the findings made by the trial court as factual. However, notwithstanding the majority’s opinion to the contrary, I believe the evidence here did present questions of fact which were resolved by the trial court. One expert testified PCP was inherently dangerous and one testified it was not. Each gave reasons for their opinions and placed their credibility in issue, and it was the trial court who was in the best position to judge credibility. (9 Witkin, supra, Appeal, § 278, at pp. 289-291.)
It is true that both questions of fact and law were presented. The issue of whether furnishing a substance can support a conviction for second degree murder is one of law. However, it is now settled the answer to that question is yes, if the substance that is furnished is one which is inherently dangerous , to human life. Numerous cases have upheld convictions for second degree felony murder based upon the furnishing of dangerous drugs. Although these pre-Patterson cases (People v. Patterson (1989) 49 Cal.3d 615 [262 Cal.Rptr. 195, 778 P.2d 549]) apply the “substantial risk to human life” standard5 instead of the “high probability [of] death” standard, they represent almost universal acceptance of the inherent dangerousness of furnishing dangerous drugs under the law as it existed prior to Patterson. The two standards appear to be different, but no case has seen fit to explain exactly how or to what *1105degree they are so. Assuming that they are,6 “The task of evaluating the evidence on this issue is most appropriately entrusted to the trial court, subject, of course, to appellate review.” (People v. Patterson, supra, 49 Cal.3d at p. 625.) We should defer to the trial court’s ruling unless patently erroneous.
Instead, the majority ignores the trial court’s findings, and opines that “Merely conveying the drug to another does not require that it be consumed . . . .” (Maj. opn., ante, at p. 1099.) However, such a statement defies experience. When one furnishes an illicit drug to another, it is with the realization that the drug will ultimately be consumed, if not by the buyer then by someone else. It does not take an expert to confirm this—just plain, ordinary common sense.
Oddly, the majority seems to inversely correlate the inherent dangerousness of PCP with the pleasure it induces in the vast majority of users. (Maj. opn., ante, at p. 1099, fn. 14.) If the determination of a drug’s inherent dangerousness were dependent on whether it provides pleasure, most prohibited narcotics would have to be deemed inherently not dangerous since they presumably provide subjectively pleasurable sensations. It is the pleasure which fuels their demand. But for the pleasure, demand would cease, and thousands of drug dealers would join the rolls of the unemployed. And, though fatalities associated with PCP use may not be directly caused by ingestion of the drug, but instead from its hallucinogenic effects, this is no less a reason to determine that furnishing PCP carries a high probability of *1106death. The majority’s analogy to a potentially fatal allergic reaction from codeine is absurd; such allergic reactions are uncommon with codeine consumption. But disorientation, muscular inability, hallucinations, spatiotemporal confusion and other potentially dangerous symptoms are common in PCP intoxication. To view these effects as distinct from the drug itself is asinine.
Moreover, the drug is not inert and harmless when not being used. It can permeate through plastic and other packaging materials, can be absorbed through the skin by handling, and its vapors can be inhaled when it is nearby. It is thus capable of causing the aforementioned symptoms in a person who may have no intent to ingest the drug.
I would find substantial evidence supports the trial court’s determination that furnishing PCP is an inherently dangerous felony.
Respondent’s petition for review by the Supreme Court was denied August 13, 1992. Panelli, J., Baxter, J., and George, J., were of the opinion that the petition should be granted.
T also question whether the majority’s opinion meets the standards for publication found in California Rules of Court, rule 976. The parties agreed in the trial court to submit the issue of whether furnishing PCP is inherently dangerous on the testimony of the two expert witnesses at trial. While I do not mean to slight either, I believe any court called upon to rule on such an important issue must be satisfied there was a full complement of expert opinion before any such decision is rendered in a published opinion. I do not believe this was the case here. Moreover, the majority picks and chooses what it requires to reach its result, giving credence to defendant’s expert and rejecting the People’s expert in some instances and even ignoring the testimony of both in others. As such, the majority’s contribution to the legal literature is of dubious import.
See Presiding Justice Sills’ dissenting opinion in People v. Stoltz *(Cal.App.).
The majority relies on Hurtado v. Statewide Home Loan Co., supra, 167 Cal.App.3d 1019, to support the use of de novo review in this case. Hurtado was expressly overruled by Shamblin v. Brattain (1988) 44 Cal.3d 474 [243 Cal.Rptr. 902, 749 P.2d 339], insofar as it
Reporter’s Note: Opinion (G008692) deleted upon direction of Supreme Court by order dated April 16, 1992. *1102held an appellate court need not defer to the trial court’s factual determinations based on written declarations. (Id. at p. 479, in. 4.) In addition, several appellate courts, including this division, have noted Hurtado's holdings that a trial court’s exercise of discretion is subject to plenary appellate scrutiny and that actual prejudice must be shown to support a discretionary dismissal under Code of Civil Procedure section 583.420, are contrary to other Supreme Court decisions and have declined to follow them. (Wong v. Davidian (1988) 206 Cal.App.3d 264, 268-269 [253 Cal.Rptr. 675] [standard of review]; County of Los Angeles v. Superior Court (1988) 203 Cal.App.3d 1205, 1210 [250 Cal.Rptr. 481] [prejudice]; Schumpert v. Tishman Co. (1988) 198 Cal.App.3d 598, 605 [243 Cal.Rptr. 810] [prejudice]; Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50, 55, fn. 3 [242 Cal.Rptr. 676] [standard of review]; Freedman v. Pacific Gas & Electric Co. (1987) 196 Cal.App.3d 696, 704 [242 Cal.Rptr. 8] [standard of review]; Cubit v. Ridgecrest Community Hospital (1987) 194 Cal.App.3d 1552, 1565-1566 [240 Cal.Rptr. 346] [standard of review]; San Ramon Valley Unified School Dist. v. Wheatley-Jacobsen, Inc. (1985) 175 Cal.App.3d 1050, 1054-1055 [221 Cal.Rptr. 342] [standard of review].)
That section reads: “Before the Supreme Court, a court of appeal, or the appellate department of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.”
This was the standard which preceded Patterson and can be found in People v. Burroughs (1984) 35 Cal.3d 824, 833 [201 Cal.Rptr. 319, 678 P.2d 894].
There is an odd juxtaposition in recent case law between the distinct crimes of second degree implied malice murder and second degree felony murder. The latter requires the commission of an underlying felony which is “inherently dangerous to human life.” (People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892].) Patterson interprets this phrase as requiring the commission of a felony which carries “ ‘a high probability’ that death will result.” (People v. Patterson, supra, 49 Cal.3d 615, 627.) Patterson arrives at this conclusion by analogizing to implied malice murder, which requires the commission of “an act, the natural consequences of which are dangerous to life.” (People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279]; see also People v. Patterson, supra, at pp. 626-627.) In People v. Dellinger (1989) 49 Cal.3d 1212 [264 Cal.Rptr. 841, 783 P.2d 200], the Supreme Court held that the “dangerous to life” definition of implied malice murder articulates the same standard as the “high probability [of] death” standard. (Id. at pp. 1218-1219.) Of course, the crime in Dellinger was implied malice murder, not second degree felony murder. Nonetheless, Dellinger clearly holds that the phrase “dangerous to life” has the same meaning as the phrase “high probability [of] death.”
We must also remember that the Supreme Court has previously equated “dangerous to life,” in the context of second degree felony murder, with “substantial risk to human life.” (People v. Burroughs, supra, 35 Cal.3d at p. 833.) The Burroughs standard (“substantial risk to human life”) sounds less stringent than the Patterson standard (“high probability [of] death”). But how can this be if, according to Dellinger, the Patterson standard means the same as, and is no more stringent than, the “dangerous to life” standard? I hope the Supreme Court will clarify this apparent conundrum.