Under the second degree felony-murder rule, a defendant who kills in the commission of a felony that is inherently dangerous to life is guilty of second degree murder, even if the killing is accidental. But the rule applies only if the underlying felony is committed for a felonious purpose independent of the homicide (People v. Mattison (1971) 4 Cal.3d 177, 185 [93 Cal.Rptr. 185, 481 P.2d 193]); it does not apply to a felony that “is an integral part of’ and “included in fact within” the killing (People v. Ireland (1969) 70 Cal.2d 522, 539 [75 Cal.Rptr. 188, 450 P.2d 580]; see also People v. Hansen (1994) 9 Cal.4th 300, 312 [36 Cal.Rptr.2d 609, 885 P.2d 1022] (Hansen)).
Here, defendant shot and killed a man who had been trying to steal hubcaps from defendant’s car. Defendant claimed he was merely trying to scare the man and did not intend to actually shoot him. The majority holds that the second degree felony-murder rule applies because the killing occurred during an inherently dangerous felony, namely, discharging a firearm *178with gross negligence (Pen. Code, § 246.3),1 and defendant’s claimed objective to scare the victim was an independent felonious purpose. Discharging a firearm with gross negligence is indeed an inherently dangerous felony. But I disagree that defendant acted with a felonious purpose that was independent of the killing.
I
On the night of December 27, 1998, Kehinde Riley, Ricky Harris, Bradley Gentry, and Lamont Benton parked their car near defendant’s apartment in Oakland. Riley and Harris began to steal the hubcaps from defendant’s car, which was parked outside. When defendant came out of his apartment, Gentry and Benton drove off, while Riley and Harris ran. Benton saw defendant fire shots from his porch, and he heard more shots as he drove away. A neighbor saw defendant stand in the center of the road in a “firing stance” and shoot straight ahead. Harris was shot in the foot; Riley was shot in the back of the head and killed. His body was found about 50 yards from where the shots were fired.
Defendant, a 25-year-old man with no criminal record, claimed he did not shoot straight ahead, instead aiming the gun at a 45-degree angle above the victim’s head, intending to scare the thieves. He presented expert testimony by a psychologist that he suffered from posttraumatic stress disorder after being shot six months earlier in a “road rage” incident.2 As a result of this incident, defendant had become reclusive, fearful, and easily startled, causing him to overreact to threatening situations. A firearms instructor testified that persons who are inexperienced with firearms tend to hit below their point of aim, thereby supporting defendant’s claim that he was aiming over the thieves’ heads when he shot. Defendant also presented evidence of his nonviolent character.
The trial court instructed the jury on first and second degree murder, and on voluntary manslaughter. As to second degree murder, it instructed the jury on killing with express malice (CALJIC No. 8.30), on killing with implied malice (CALJIC No. 8.31), and on felony murder (CALJIC No. 8.32) arising from defendant’s alleged commission of the crime of grossly negligent discharge of a firearm. After deliberating for six days, the jury convicted defendant of the second degree murder of Riley; it also convicted him of assaulting Harris with a deadly weapon. The Court of Appeal concluded the trial court’s instruction on second degree felony murder was wrong, because *179the crime of grossly negligent discharge of a firearm “merged” into the killing, but it found the error harmless.
II
At issue here is the “merger” exception to the second degree felony-murder rule.3 That exception was first articulated by this court in People v. Ireland, supra, 70 Cal.2d 522. In that case, the defendant shot and killed his wife. The couple’s six-year-old daughter testified that just before the shooting her parents were talking about which of them was going to move out, and that after her father shot her mother he sat down, rocking back and forth and crying, until the neighbors arrived. At the defendant’s murder trial, the trial court instructed the jury that if the defendant killed his wife while committing an assault with a deadly weapon he was guilty of second degree murder; the jury convicted the defendant of that crime.
We reversed the defendant’s conviction, explaining: “We have concluded that the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule ‘beyond any rational function that it is designed to serve.’ [Citation.] To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.” (People v. Ireland, supra, 70 Cal.2d at p. 539, fn. omitted.)
Two years later, this court in People v. Mattison, supra, 4 Cal.3d 177, elaborated on the Ireland merger exception. In Mattison, the defendant prisoner sold another inmate an alcoholic substance that caused the latter’s death. The trial court instructed the jury it could convict the defendant of second degree murder under the second degree felony-murder rule, based on his violation of a statute making it a felony to put poison in a drink with the intent to injure (§ 347). We upheld the conviction, explaining that the rule was inapplicable because, unlike Ireland, “the underlying felony was committed with a ‘collateral and independent felonious design.’ ” (Mattison, supra, 4 Cal.3d at p. 185, italics added.) We quoted with approval a passage from People v. Taylor (1970) 11 Cal.App.3d 57 [89 Cal.Rptr. 697], in which the Court of Appeal upheld a defendant’s conviction under the second degree *180felony-murder rule based on furnishing the victim with the heroin that caused his demise: “ ‘While the felony-murder rule can hardly be much of a deterrent to a defendant who has decided to assault his victim with a deadly weapon, it seems obvious that in the situation presented in the case at bar, it does serve a rational purpose: knowledge that the death of a person to whom heroin is furnished may result in a conviction for murder should have some effect on the defendant’s readiness to do the furnishing.’ ” (Mattison, supra, at p. 185.)
More recently, in Hansen, supra, 9 Cal.4th 300, a bare four-to-three majority of this court said Mattison's independent felonious purpose test should not be “the critical test determinative of merger in all cases” (id. at p. 315), asserting that this test was “somewhat artificial” and could “lead to an anomalous result” (ibid.). Instead, the majority “focus[ed] upon the principles and rationale underlying . . . Taylor[, supra, 11 Cal.App.3d 57 [89 Cal.Rptr. 697]], namely, that with respect to certain inherently dangerous felonies, their use as the predicate felony supporting application of the felony-murder rule will not elevate all felonious assaults to murder or otherwise subvert the legislative intent.” (Hansen, supra, 9 Cal.4th at p. 315.) Applying this amorphous “test,” the Hansen majority concluded that the Ireland merger exception did not apply to the crime of shooting at an inhabited dwelling.
I dissented. Applying the independent felonious purpose test, I concluded that the Ireland merger exception barred application of the second degree felony-murder rule in Hansen. The evidence, I said, “did not show that [the] defendant had any independent felonious purpose for discharging the firearm at the . . . residence.” (Hansen, supra, 9 Cal.4th at p. 330 (dis. opn. of Kennard, J.).)
In this case, the majority, without explanation, abandons the rationale of the Hansen majority, and it returns to the independent felonious purpose standard, which it had criticized in Hansen, supra, 9 Cal.4th 300. Good. For that was the test I urged the Hansen majority to apply, to no avail. Alas, the majority here misapplies that test, concluding that defendant had a felonious purpose independent of the killing. He did not, as I explain below.
Ill
According to the majority, defendant’s claimed purpose to scare the victim by shooting at him was a felonious purpose independent of the killing. Under that rationale, defendant would have been better off had he testified to firing at the victim intending to hit him, because then the second degree felony-murder rule would not apply. In so construing the Ireland merger exception, *181the majority has twisted traditional concepts of criminal law. After today’s decision, prosecutors will try to obtain murder convictions by arguing that defendants lacked an intent to kill, while defense attorneys, to prevent their clients from being convicted of murder, will be compelled to argue that their clients intended to kill. I cite two examples to illustrate the point.
1. Patricia is confronted at her home by her former boyfriend John, who has for many years abused her physically. John looks angry. Unreasonably believing that John is about to assault her and that she must protect herself, Patricia pulls a gun from a nearby drawer and fires a shot that hits and kills John. If Patricia shot John intentionally, she is guilty not of murder but of the lesser crime of voluntary manslaughter, because she acted in “ ‘unreasonable self-defense’—the unreasonable but good faith belief in having to act in self-defense . . . .” (People v. Blakeley (2000) 23 Cal.4th 82, 88 [96 Cal.Rptr.2d 451, 999 P.2d 675].) But, under the majority’s holding today, if Patricia intended only to scare John, she is guilty of the more serious crime of second degree murder under the felony-murder rule, because she violated section 246.3 by discharging a firearm with gross negligence and she had an independent felonious purpose—namely, to scare John.
2. During an argument with a close friend, Cornelia, in Cornelia’s kitchen, Derek admits that he recently raped Cornelia’s teenage daughter at gunpoint. Infuriated, Cornelia takes a gun from a kitchen cabinet and, as Derek backs up in fear, fires a shot that ricochets off a metal pot and strikes Derek in the chest, killing him. When questioned by the police, Cornelia says she wanted to make Derek experience a fear similar to that Cornelia’s daughter must have felt when Derek raped her at gunpoint. Under the majority’s approach, if Cornelia’s account of her motive is true she is guilty of second degree murder, because she had an independent felonious purpose—to make Derek feel fear—and she violated section 246.3 (discharging a firearm with gross negligence) when she fired the fatal shot. But if Cornelia truly intended to shoot Derek, she would be guilty only of voluntary manslaughter, because she killed him in a “sudden quarrel or heat of passion.” (§ 192.)
Ordinarily, defense counsel tries to portray the defendant as someone with a less culpable mental state, while the prosecutor tries to portray the defendant as having a more culpable mental state. But under the majority’s decision today, these positions will be reversed—oddly so—whenever the defendant is charged with fatally shooting the victim and, as in the two examples given above, the defense claims either unreasonable self-defense or heat of passion. One can imagine this future closing argument by defense counsel: “Ladies and gentlemen of the jury, the prosecutor has told you that my client was simply trying to scare the victim when he shot her. What utter nonsense! The evidence clearly shows that my client’s only desire was to end *182the victim’s life when he fired the fatal shot.” Surely not an argument to the client’s liking or calculated to evoke the jury’s sympathy, but one that is compelled under the majority’s holding.
Here, defense counsel argued to the jury that defendant fired the gun only to scare, not to kill, victim Riley. The prosecutor, by contrast, argued that defendant intended to kill Riley when he fired the fatal shot. Under the majority’s holding, the prosecutor should have argued that defendant was only trying to scare Riley. Defense counsel, by contrast, should have argued that defendant was trying to injure or kill Riley, because only if defendant intended to shoot Riley could counsel contend that defendant killed him in unreasonable self-defense, and therefore was guilty not of murder, but only of voluntary manslaughter.
A defendant who kills in the heat of passion or in unreasonable self-defense lacks malice, and thus is not guilty of murder but only of voluntary manslaughter. Under the second degree felony-murder rule, however, the prosecution need not prove malice, and therefore heat of passion and unreasonable self-defense are irrelevant. This is not a problem with any other felony to which the second degree felony-murder rule has been held to apply, because none of those offenses is committed in the heat of passion or in unreasonable self-defense.4 But, unlike those other felonies, violations of section 246.3 (discharging a firearm with gross negligence) that result in fatalities can be committed by defendants with either of those two mental states. By holding that the second degree felony-murder rule applies to violations of section 246.3, the majority undermines the Legislature’s determination that homicides committed in the heat of passion or in unreasonable self-defense are not murder but voluntary manslaughter.
Also, the majority’s holding that a violation of section 246.3 may form the basis for a conviction under the second degree felony-murder rule is inconsistent with the rule that to prove felony murder the prosecution must show that the defendant had “the specific intent to commit the underlying felony.” *183(People v. Hart (1999) 20 Cal.4th 546, 608 [85 Cal.Rptr.2d 132, 976 P.2d 683]; see also People v. Nichols, supra, 3 Cal.3d at p. 163.) One wonders how a defendant could be said to have the specific intent to violate a statute that, like section 246.3, prohibits grossly negligent conduct. Grossly negligent conduct is highly careless or reckless, but it is not intentional. What is it that the defendant in the situation just described must specifically intend to do? The majority does not say.
The majority is wrong in treating defendant’s alleged intent to scare the victim as a felonious intent independent of the killing. An intent to scare is neither independent nor felonious.
An intent to scare a person by shooting at the person is not independent of the homicide because it is, in essence, nothing more than the intent required for an assault, which is not considered an independent felonious purpose. (See generally People v. Williams (2001) 26 Cal.4th 779 [111 Cal.Rptr.2d 114, 29 P.3d 197] [discussing the mental state required for an assault].) Two examples of independent felonious purpose come to mind: (1) When the felony underlying the homicide is manufacturing methamphetamine, the intent to manufacture this illegal drug is a felonious intent that is independent of the homicide, thus allowing the manufacturer to be convicted of murder if the methamphetamine laboratory explodes and kills an innocent bystander. (2) When the underlying felony is possession of a destructive device, the intent to possess that device is an independent felonious intent, allowing the possessor to be convicted of murder if the device accidentally explodes, killing an unintended victim. But when, as here, a defendant fires a gun to scare the victim, the intended harm—that of scaring the victim—is not independent of the greater harm that occurs when a shot fired with the intent to scare instead results in the victim’s death.
Nor can an intent to scare a person properly be described as felonious, because an intent to frighten is not an element of section 246.3, which requires only that the defendant discharge a firearm with gross negligence. To prove a violation of section 246.3, the defendant’s intent is irrelevant. Thus, when the jury in this case was instructed on the elements of section 246.3, it was not told—properly so—to decide whether defendant shot Riley with the intent to scare him. In sum, it makes no sense legally to treat defendant’s alleged intent to scare as “felonious” when such an intent is legally irrelevant and when the jury never decided whether he had that intent.
IV
For the reasons given above, I conclude, as the Court of Appeal did, that the trial court erred in telling the jury it could convict defendant under the *184second degree felony-murder rule based on section 246.3’s prohibition against discharging a firearm with gross negligence. But unlike the Court of Appeal, I find the error prejudicial.
The trial court’s erroneous instruction on the second degree felony-murder rule violated the federal Constitution because it misstated the elements of second degree murder, allowing the jury to convict defendant of that crime without having to decide whether he acted with malice when he fired the shot that killed Kehinde Riley. The error requires reversal unless the reviewing court can say beyond a reasonable doubt that the error was harmless. (Neder v. United States (1999) 527 U.S. 1, 15-20 [144 L.Ed.2d 35, 119 S.Ct. 1827].)
In finding the error harmless, the Court of Appeal here reasoned that the jury implicitly found that defendant acted with malice in firing at the two fleeing thieves (Riley and Harris) when it convicted him of assault with a deadly weapon on Harris. Thus, the Court of Appeal said, the jury necessarily found that defendant acted with malice when he shot Riley, killing him. I disagree.
A person who kills in the heat of passion or in unreasonable self-defense lacks malice and is therefore guilty not of murder, but only of voluntary manslaughter. No court, however, has ever held that either heat of passion or unreasonable self-defense is a defense to the crime of assault with a deadly weapon. Thus, the jury here did not implicitly find that defendant acted with malice when it convicted him of assault with a deadly weapon on Harris, because it could have found defendant guilty of that crime even if it believed he fired in the heat of passion arising from his discovery of the thieves stealing his hubcaps, or that he fired in the unreasonable belief that he had to shoot at the thieves to protect himself. As a result, the court’s instruction on the second degree felony-murder rule was prejudicial error.5
Conclusion
I would reverse the judgment of the Court of Appeal, and I would remand with directions to reverse defendant’s murder conviction.
All further statutory citations are to the Penal Code.
Defendant was a passenger in a car that was involved in an accident; after an argument about who was at fault, the driver of the other car pulled a gun and shot defendant.
For convenience, I call this the “Ireland merger exception.”
Courts have held that murder convictions can be based on the second degree felony-murder rule when the underlying felony is shooting at an inhabited dwelling (Hansen, supra, 9 Cal.4th at p. 316), manufacturing methamphetamine (People v. James (1998) 62 Cal.App.4th 244, 257-271 [74 Cal.Rptr.2d 7]), reckless or malicious possession of a destructive device (People v. Morse (1992) 2 Cal.App.4th 620, 646 [3 Cal.Rptr.2d 343]), kidnapping (People v. Greenberger (1997) 58 Cal.App.4th 298, 377 [68 Cal.Rptr.2d 61]; People v. Pearch (1991) 229 Cal.App.3d 1282, 1298 [280 Cal.Rptr. 584]), poisoning with intent to injure (People v. Mattison, supra, 4 Cal.3d at pp. 184-186), and arson of a motor vehicle (People v. Nichols (1970) 3 Cal.3d 150, 163 [89 Cal.Rptr. 721, 474 P.2d 673]; but see People v. Henderson (1977) 19 Cal.3d 86, 96 [137 Cal.Rptr. 1, 560 P.2d 1180] [possibly disapproving Nichols]). In People v. Howard, S108353, this court will decide whether the second degree felony-murder rule applies to the crime of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer. (Veh. Code, § 2800.2.)
The dissenting opinions of Justice Werdegar and Brown and the concurring opinion of Justice Moreno suggest that this court should reconsider the validity of the second degree felony-murder rule. In light of my conclusion that defendant’s conviction should be reversed in any event, and because the issue was not raised in the parties’ briefs or at oral argument, I express no view on this issue.