I concur in the opinion and agree with the majority’s analysis and holding that the merger doctrine (People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580]) does not preclude the offense of willful “discharge [of] a firearm in a grossly negligent manner” (Pen. Code, § 246.3)1 from serving as a predicate felony for second degree felony murder. Viewing the offense of discharging a firearm in a grossly negligent manner in the abstract (maj. opn., ante, at p. 167; People v. Burroughs (1984) 35 Cal.3d 824, 833 [201 Cal.Rptr. 319, 678 P.2d 894] (Burroughs); People v. Patterson (1989) 49 Cal.3d 615, 620 [262 Cal.Rptr. 195, 778 P.2d 549] (Patterson)), there can be no doubt it is inherently dangerous to human life, a proposition defendant does not contest (maj. opn., ante, at p. 168), thereby making it eligible to be a predicate felony under existing precedent (maj. opn., ante, at p. 166; People v. Satchell (1971) 6 Cal.3d 28 [98 Cal.Rptr. 33, 489 P.2d 1361], disapproved on another point in People v. Flood (1998) 18 Cal.4th 470 [76 Cal.Rptr.2d 180, 957 P.2d 869]; Patterson, supra, 49 Cal.3d at p. 620). However, I write separately and briefly to express my concern, not with the majority’s resolution of the precise issue presented in this case, but with a broader issue not raised by defendant—whether this court should continue to adhere to the doctrine of second degree felony murder.2
This court has defined second degree felony murder as “ ‘[a] homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, § 189) ....’” (Patterson, supra, 49 Cal.3d at p. 620, quoting People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892].) As the majority points out, second degree felony murder is well established in California. (Maj. opn., ante, at p. 173.) But unlike first degree felony murder, which is codified in section 189 (People v. Dillon (1983) 34 Cal.3d 441, 472 [194 Cal.Rptr. 390, 668 P.2d 697]), “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” (id. at p. 472, fn. 19; see also maj. opn., ante, at p. 166).
The felony-murder rule has been roundly criticized both by commentators and this court. As one commentator put it, “[t]he felony murder rule has an *175extensive history of thoughtful condemnation.” (Gerber, The Felony Murder Rule: Conundrum Without Principle (1999) 31 Ariz. St. L.J. 763, 766.) This court recognized in People v. Washington (1965) 62 Cal.2d 777, 783 [44 Cal.Rptr. 442, 402 P.2d 130], that the “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.” (See also In re Christian S. (1994) 7 Cal.4th 768, 785 [30 Cal.Rptr.2d 33, 872 P.2d 574] (conc. opn. of Mosk, J.); People v. Satchell, supra, 6 Cal.3d at p. 33.) In Burroughs, we said that “[t]his court has long held the felony-murder rule in disfavor. ‘We have repeatedly stated that felony murder is a “highly artificial concept” which “deserves no extension beyond its required application.” ’ [Citations.]” (Burroughs, supra, 35 Cal.3d at p. 829.) We acknowledged our previous criticism of this rule: “ ‘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.’ ” (Ibid., fn. 3, quoting People v. Phillips (1966) 64 Cal.2d 574, 583, fn. 6 [51 Cal.Rptr. 225, 414 P.2d 353]; see also Burroughs, supra, 35 Cal.3d at pp. 836-854 (conc. opn. of Bird, C. J.) [providing a comprehensive overview and critique of the felonymurder doctrine].)
While commentators criticized, and continue to criticize, the doctrine in both its first and second degree manifestations, my concern here is not with first degree felony murder, which is limited to a few legislatively enumerated felonies and is expressly codified. Absent constitutional infirmity this court is not in a position to abrogate first degree felony murder. (See People v. Dillon, supra, 34 Cal.3d at p. 463 [“the first degree felony-murder rule is a creature of statute” that this court may not judicially abrogate “merely because it is unwise or outdated”].) The same is not true of second degree felony murder. Second degree felony murder does not have the same statutory basis, and may be abrogated by this court. (See Patterson, supra, 49 Cal.3d at p. 641 (conc. & dis. opn. of Panelli, J. [stating doctrine is court created and calling upon the Legislature to intervene]; Burroughs, supra, 35 Cal.3d at p. 836 (conc. opn. of Bird, C. J.) [“The time has come for this court to discard the artificial and court-created offense of second degree felony murder”].)
Acknowledging the criticism leveled against the second degree felony-murder doctrine, this court in Patterson declined the invitation to reconsider the doctrine, stating that the “Legislature . . . has taken no action to alter this judicially created rule, and has declined our more recent suggestion in People v. Dillon[, supra, 34 Cal.3d at page 472, footnote 19], that it reconsider the rules on first and second degree felony murder and misdemeanor manslaughter.” (Patterson, supra, 49 Cal.3d at p. 621.) Because I believe the doctrine is deeply flawed and the issue is important, I do not *176believe legislative acquiescence should deter this court from reassessing the rule in an appropriate case.
The facts of this case bring into focus the inherent problems with the second degree felony-murder rule. As the Attorney General stated during oral argument, the only reason the felony-murder instruction was submitted to the jury is because defendant told the police that “he didn’t mean it, he didn’t intend to do this, he wasn’t trying to hurt anybody; he wasn’t angry; he wasn’t upset; he was just trying to scare people away from his domain.” The Attorney General further asserted that had defendant not made those statements to the police, the felony of grossly negligent discharge of a firearm, which served as the predicate offense for the second degree felony-murder instruction, would not have been considered. This court queried whether defendant actually made it easier for the prosecution to obtain a second degree murder conviction by stating that he did not intend to kill the victim, thereby making section 246.3 available as a predicate offense. The Attorney General replied: “If the [defendant] had not offered these statements to the police and had not opened this avenue up to the prosecutor, there would have been one less theory for culpability. . . . That was a bed [defendant] made and he must now lie in it.”
Defendant’s jury was instructed on first degree murder, second degree murder based on express and implied malice, second degree felony murder based on violation of section 246.3, and voluntary manslaughter. (Maj. opn., ante, at p. 164.) Without the felony-murder theory and instruction, the prosecution in this case would have had to prove, and the jury would have had to find, that defendant acted with malice. (See People v. Dillon, supra, 34 Cal.3d at p. 475 [“In every case of murder other than felony murder the prosecution undoubtedly has the burden of proving malice as an element of the crime.”].) But that was unnecessary in this case because of the commission of the predicate felony. The prosecution, thus, was essentially relieved of the burden to prove malice because, ironically, defendant maintained that he did not intend to kill the victims. Having done so, he also precluded available defenses based on lack of malice because the issue of malice is irrelevant in a felony-murder case. (Patterson, supra, 49 Cal.3d at p. 626.)
I am not fully convinced prosecutors should be permitted to use, or even need, this backdoor route to secure a second degree murder conviction. As noted above, commentators have observed “ ‘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 ....’” (People v. Satchell, supra, 6 Cal.3d at p. 33, fn. 11, quoting Packer, The Case for Revision of the Penal Code (1961) 13 Stan. L.Rev. 252, 259.) In other words, “ ‘If the defendant commits the felony in a highly reckless *177manner, he can be convicted of second degree murder independently of the shortcut of the felony-murder rule.’ ” (Satchell, at p. 34, fn. 11, quoting Note (1967) 55 Cal. L.Rev. 329, 340.)
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].” (People v. Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666]; maj. opn., ante, at p. 164.) 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.
Unlike Justice Brown, I concur in the majority opinion because, as stated at the outset, the refusal to apply the merger doctrine to the predicate offense in this case is correct given the current state of the law. Defendant neither challenges the second degree murder doctrine nor the fact that the predicate offense of willfully discharging a firearm in a grossly negligent manner is inherently dangerous. The subject of my concurrence, the continued viability of the second degree felony-murder rule, was neither briefed nor argued in this court, so I have not reached a firm conclusion on this issue, but I write to express my reservations about the doctrine and intention to examine it closely when the issue is clearly raised and briefed in this court.
All further statutory references are to the Penal Code.
Defendant does not challenge the doctrine; therefore the issue is not directly before this court.