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 *1214defendant’s mental state.” (Maj. opn., ante, at p. 1182.) Regardless of this court’s view of the wisdom of doing so, it is within the Legislature’s prerogative to remove the necessity to prove malice when a death results from the commission of certain felonies, and the Legislature has done so by codifying the first degree felony-murder rule in Penal Code section 189. (People v. Dillon (1983) 34 Cal.3d 441, 472 [194 Cal.Rptr. 390, 668 P.2d 697].) Thus, we cannot abrogate the first degree felony-murder rule because it “is a creature of statute. . . . [T]his court does not sit as a super-legislature with the power to judicially abrogate a statute merely because it is unwise or outdated. [Citations.]” (Id. at p. 463.) We do, however, possess the authority to abrogate the second degree felony-murder doctrine because “ ‘the second degree felony-murder rule remains, as it has been since 1872, a judge-made doctrine without any express basis in the Penal Code.’ ” (People v. Robertson, supra, 34 Cal.4th at p. 174 (cone. opn. of Moreno, J.).)
My concerns about the felony-murder rule are neither new nor original. Nearly 45 years ago, this court acknowledged that “[t]he felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. [Citations.] Although it is the law in this state [citation], it should not be extended beyond any rational function that it is designed to serve.” (People v. Washington (1965) 62 Cal.2d 777, 783 [44 Cal.Rptr. 442, 402 P.2d 130], fn. omitted.) We have described the felony-murder rule as “ ‘a “highly artificial concept” ’ ” that this court long has held “in disfavor” (People v. Burroughs, supra, 35 Cal.3d 824, 829) “because it relieves the prosecution of the burden of proving one element of murder, malice aforethought” (People v. Henderson (1977) 19 Cal.3d 86, 92 [137 Cal.Rptr. 1, 560 P.2d 1180]). “The felony-murder doctrine has been censured not only because it artificially imposes malice as to one crime because of defendant’s commission of another but because it anachronistically resurrects from a bygone age a ‘barbaric’ concept that has been discarded in the place of its origin.” (People v. Phillips (1966) 64 Cal.2d 574, 583, fn. 6 [51 Cal.Rptr. 225, 414 P.2d 353], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12 [76 Cal.Rptr.2d 180, 957 P.2d 869].)
The second degree felony-murder doctrine suffers from all the same infirmities as its first degree counterpart, and more. In People v. Satchell (1971) 6 Cal.3d 28, 33, footnote 11 [98 Cal.Rptr. 33, 489 P.2d 1361] (overruled on other grounds in People v. Flood, supra, 18 Cal.4th 470, 490, fn. 12) we observed that the second degree felony-murder rule is largely unnecessary and, in those unusual cases in which it would mandate a different result, may be unfair: “ ‘It may be that the rule is unnecessary in almost all cases in which it is applied, that is to say, that conviction in those cases can be predicated on the normal rules as to murder and as to accomplice liability. In the small residuum of cases, there may be a substantial question whether *1215the rule reaches a rational result or does not at least distract attention from more relevant criteria.’ (Fn. omitted.) [Citation.] [][] ‘If the defendant commits the felony in a highly reckless manner, he can be convicted of second degree murder independently of the shortcut of the felony-murder rule. Under California’s interpretation of the implied malice provision of the Penal Code [§ 188], proof of conduct evidencing extreme or wanton recklessness establishes the element of malice aforethought required for a second degree murder conviction. [Citation.] . . . The jury would decide whether the evidence, including the defendant’s conduct and inferences rising from it, established the requisite malice aforethought; they would not be bound by the conclusive presumption of malice which the felony murder rale compels.’ ”
The majority acknowledges the criticism heaped on the second degree felony-murder rule and describes this court’s halting and sometimes inconsistent attempts to circumscribe the scope of the rule, most notably by creating the Ireland merger doctrine (People v. Ireland 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580]). The majority’s reformulation of the merger doctrine is an improvement, but it does not correct the basic flaw in the felony-murder rule; that it is largely unnecessary and, in those unusual instances in which it would produce a different result, may be unfair. “In most cases involving a felony-murder theory, prosecutors should have little difficulty proving second degree murder with implied malice. ‘[M]alice is implied “when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life” [citation].’ [Citation.] Eliminating second degree felony murder from the prosecution’s arsenal would not have a detrimental effect on the prosecution’s ability to secure second degree murder convictions, but it would go a long way to restoring the proper balance between culpability and punishment.” (People v. Robertson, supra, 34 Cal.4th 156, 177 (conc. opn. of Moreno, J.).)
The lack of necessity for the second degree felony-murder rule is demonstrated by the majority’s conclusion that the error in instructing the jury on second degree felony murder in this case was harmless because no reasonable juror could have found that defendant participated in this shooting without also concluding that he harbored at least implied malice. I agree. This will be the rule, rather than the exception. In most instances, a juror who finds that the defendant killed the victim while committing a felony that is inherently dangerous to human life necessarily also will conclude that the defendant harbored either express or implied malice and thus committed second degree murder without relying upon the second degree felony-murder rule. Only in those rare cases in which it is not clear that the defendant acted in conscious disregard of fife will the second degree felony-murder rule make a difference, *1216but those are precisely the rare cases in which the rule might result in injustice. I would eliminate the second degree felony-murder rule and rely instead upon the wisdom of juries to recognize those situations in which a defendant commits second degree murder by killing the victim during the commission of a felony that is inherently dangerous to life.
Appellant’s petition for a rehearing was denied April 29, 2009.