I concur in affirming the judgment as to guilt. I dissent, however, from the affirmance of the special circumstance finding and the sentence of death. The special circumstance finding is invalid because it is based on a prior murder conviction in another jurisdiction that does not include all the elements of murder under California law. The sentence of death is invalid because it is based on the invalid special circumstance finding.
Under California’s death penalty law, capital punishment may be imposed for the crime of first degree murder only if that crime was committed with one or more of the special circumstances listed in Penal Code section 190.2, *705subdivision (a). Here, the information alleged and the jury found only one special circumstance, that defendant “was convicted previously of murder in the first or second degree” (Pen. Code, § 190.2, subd. (a)(2)). For purposes of this special circumstance, “an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.” (Ibid.) As this court has explained, this provision limits qualifying foreign convictions to those that “include all the elements of the offense of murder in California.” (People v. Andrews (1989) 49 Cal.3d 200, 223 [260 Cal.Rptr. 583, 776 P.2d 285]; accord, People v. Trevino (2001) 26 Cal.4th 237, 244 [109 Cal.Rptr.2d 567, 27 P.3d 283].)
Here, to prove the prior murder special circumstance, the prosecution introduced evidence that defendant was convicted of murder in Texas in 1980. The jury’s prior murder special-circumstance finding is based entirely on this Texas conviction. The issue, then, is whether this Texas conviction “include[s] all the elements of the offense of murder in California.” (People v. Andrews, supra, 49 Cal.3d at p. 223; accord, People v. Trevino, supra, 26 Cal.4th at p. 244.) It does not. The reason it does not, briefly stated, is this: California law recognizes the doctrine of imperfect self-defense, under which a defendant who kills with an actual but unreasonable belief in the need for self-defense is not guilty of murder but may be guilty of manslaughter. Imperfect self-defense is not an affirmative defense; rather, it is inherent in the statutory definition of malice, which is an element of murder. Texas law does not recognize the doctrine of imperfect self-defense, and therefore a Texas murder conviction does not include the element of malice as defined by California law.
To provide a fuller explanation of this reasoning, I begin with the statutory definition of murder in California as “the unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a), italics added.) This statutory definition makes “malice aforethought” (which this court’s opinions usually shorten to “malice”) an element of murder. (See, e.g., People v. Rios (2000) 23 Cal.4th 450, 460 [97 Cal.Rptr.2d 512, 2 P.3d 1066] [“murder includes ... the element of malice”].)
California law recognizes two forms of malice: express malice and implied malice. (Pen. Code, § 188.) Under the statutory definitions, express malice exists when “there is manifested a deliberate intention unlawfully to take away the life of a fellow creature,” and implied malice exists “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Ibid., italics added.) As this court has explained, these statutory definitions of express and implied malice incorporate the doctrine of imperfect self-defense.
*706In the statutory definition of express malice, the word “unlawfully” defines an essential characteristic. (See People v. Saille (1991) 54 Cal.3d 1103, 1114 [2 Cal.Rptr.2d 364, 820 P.2d 588] [“express malice and an intent unlawfully to kill are one and the same”].) Because “[a] person who actually believes in the need for self-defense necessarily believes he is acting lawfully” (In re Christian S. (1994) 7 Cal.4th 768, 778 [30 Cal.Rptr.2d 33, 872 P.2d 574]), a person who kills intentionally while actually believing in the need for self-defense lacks the intent to kill unlawfully and thus lacks express malice (id. at pp. 778-780). If the belief in the need for self-defense is unreasonable, the killer, though not guilty of murder, may be guilty of voluntary manslaughter. (Ibid.) Thus, under California law, express malice is intent to kill without an actual belief in the need for self-defense. (Ibid.; see also People v. Lee (1999) 20 Cal.4th 47, 81 [82 Cal.Rptr.2d 625, 971 P.2d 1001] (dis. opn. of Kennard, J.); People v. Breverman (1998) 19 Cal.4th 142, 189 [77 Cal.Rptr.2d 870, 960 P.2d 1094] (dis. opn. of Kennard, J.).)
This court has construed the statutory definition of implied malice (Pen. Code, § 188 [“when no considerable provocation appears, or when the circumstances attending the killing show an abandoned or malignant heart”]) to mean that the defendant “ for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.’ ” (In re Christian S., supra, 7 Cal.4th at p. 780, fn. 4.) As this court has explained, “[a] defendant who acts with the requisite actual belief in the necessity for self-defense does not act with the base motive required for implied malice, i.e., with ‘an abandoned and malignant heart.’ ” (Ibid.) If the belief in the need for self-defense is unreasonable, the killer, though not guilty of murder, may be guilty of voluntary manslaughter. (Ibid.) Thus, under California law, implied malice is the commission of an intentional act, the natural consequences of which are dangerous to life, with knowledge of the danger (People v. Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666]), but without a genuine belief in the need for self-defense (In re Christian S., supra, 7 Cal.4th at p. 780, fn. 4).
Here, as mentioned above, the prosecution introduced evidence that defendant was convicted of the crime of murder in Texas in 1980, and the jury’s prior murder special-circumstance finding is based on this conviction. As both the majority and the Attorney General concede (maj. opn., ante, at p. 684.), Texas law does not recognize the doctrine of imperfect self-defense, so that a defendant who kills with an actual but unreasonable belief in the need for self-defense may be convicted of murder. Because Texas does not recognize imperfect self-defense, a Texas murder conviction does not include the element of malice, either express or implied, as defined by California law. Therefore, defendant’s Texas murder conviction does not *707“include all the elements of the offense of murder in California” (People v. Andrews, supra, 49 Cal.3d at p. 223), and it cannot establish the prior murder special circumstance.
The majority summarily dismisses this argument with the assertion that “the absence of imperfect self-defense ... is not an element of the offense of murder to be proved by the People,” but instead it is a “ ‘mitigating circumstance[]’ ” that, according to the majority, “may reduce murder to manslaughter by negating malice.” (Maj. opn., ante, at p. 685.) As support for this assertion the majority cites People v. Rios, supra, 23 Cal.4th at page 461. As Rios explains, however, “[i]mperfect self-defense obviates malice because that most culpable of mental states ‘cannot coexist’ with an actual belief that the lethal act was necessary to avoid one’s own death or serious injury at the victim’s hand.” (Ibid.) “Thus, where the defendant killed intentionally and unlawfully, evidence of... an actual, though unreasonable, belief in the need for self-defense, is relevant only to determine whether malice has been established, thus allowing a conviction of murder, or has not been established, thus precluding a murder conviction . . . .” (Ibid.) These words are not obscure or ambiguous. They can mean only one thing; Malice as an element of the crime of murder under California law includes as an essential component the absence of imperfect self-defense. It necessarily follows that a foreign conviction, such as defendant’s Texas murder conviction, that does not establish the absence of imperfect self-defense does not include the element of malice, and cannot support a prior murder special circumstance.
Moreover, it is the prosecution, not the defense, that has the burden of proof on the issue of imperfect self-defense. (People v. Rios, supra, 23 Cal.4th at p. 462.) When a factual circumstance negates an element of the crime, as imperfect self-defense negates malice, the federal Constitution’s due process guarantee requires the prosecution to bear the burden of proving the absence of that circumstance beyond a reasonable doubt. (Mullaney v. Wilbur (1975) 421 U.S. 684, 704 [44 L.Ed.2d 508, 95 S.Ct. 1881]; Walker v. Endell (9th Cir. 1988) 850 F.2d 470, 472.) The elements of a crime are “[t]hose constituent parts of a crime which must be proved by the prosecution to sustain a conviction.” (Black’s Law Dictionary (5th ed. 1979) p. 467.) To sustain a conviction for murder under California law, the prosecution must prove malice and, in so doing, must prove the absence of imperfect self-defense. Accordingly, the absence of imperfect self-defense is an element, or an essential component of an element, of the offense of murder.
The Attorney General argues that a decision of the Court of Appeal holding that defendant’s Texas murder conviction qualifies under the prior murder special circumstance (People v. Martinez (1991) 230 Cal.App.3d 197 [281 Cal.Rptr. 205]) established the law of the case that this court must adhere to. *708The doctrine of the law of the case, on which the Attorney General relies, applies in criminal as well as civil matters and even in death penalty cases. (People v. Stanley (1995) 10 Cal.4th 764, 786-787 [42 Cal.Rptr.2d 543, 897 P.2d 481].) But the doctrine is intended merely to enhance judicial economy, and it is not applied when the earlier decision was a “manifest misapplication of existing principles resulting in substantial injustice” (People v. Shuey (1975) 13 Cal.3d 835, 846 [120 Cal.Rptr. 83, 533 P.2d 211]), or when “the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations” (People v. Stanley, supra, at p. 787). Both of these exceptions exist here.
Imposing the death penalty on a defendant for a killing without any qualifying special circumstance is a “substantial injustice” under our law, which requires at least one special circumstance before capital punishment may even be considered. The Court of Appeal’s decision was a “manifest misapplication of existing principles” because the Court of Appeal did not recognize that the statutory definition of malice in California excludes any killing committed with an actual belief, whether reasonable or not, in the need for self-defense. This court’s decision in In re Christian S., supra, 7 Cal.4th 768, which clarified the controlling rule of law—that imperfect self-defense is inherent in the statutory definitions of express and implied malice—was decided in 1994, three years after the Court of Appeal’s decision, and thus it is an intervening decision establishing an exception to the doctrine of law of the case.
Like the majority (maj. opn., ante, at p. 688.), I see no need to decide whether, as the Attorney General argues, this court may look beyond the statutory definition of murder in Texas to determine whether defendant’s Texas conviction includes all the elements of murder in California. Nothing in the record of the Texas murder conviction (see People v. Guerrero (1988) 44 Cal.3d 343, 345 [243 Cal.Rptr. 688, 748 P.2d 1150]) establishes that defendant did not kill with an actual belief in the need for self-defense. On the contrary, the presentence report includes defendant’s statement that he drew his gun and fired the fatal shot because the victim “appeared to be reaching underneath the seat for a weapon.” (Maj. opn., ante, at p. 680.)
For these reasons, I would affirm the judgment as to guilt only and would reverse the judgment as to special circumstance and as to the penalty of death.
Appellant’s petition for a rehearing was denied November 12, 2003, and the opinion was modified to read as printed above. Kennard, J., was of the opinion that the petition should be granted.