I concur with the majority’s holding that defendant’s conviction for second degree felony murder must be reversed and the case remanded for further proceedings. However, for the reasons set forth in my dissenting opinion in People v. Robertson (2004) 34 Cal.4th 156, 186-192 [17 Cal.Rptr.3d 604, 95 P.3d 872] (dis. opn. of Brown, J.), I cannot countenance the majority’s continued allegiance to this dubious doctrine.
Here, defendant was convicted solely on a second degree felony-murder theory. The majority appears to acknowledge the rule is constitutionally and analytically suspect: “Because the second degree felony-murder rule is ‘a judge-made doctrine without any express basis in the Penal Code’ [citation], its constitutionality has been questioned [citation]. And, as we have noted in the past, legal scholars have criticized the rule for incorporating ‘an artificial concept of strict criminal liability that “erodes the relationship between criminal liability and moral culpability.” ’ [Citation.] Therefore, we have repeatedly stressed that the rule ‘ “deserves no extension beyond its required application.” ’ [Citations.]” (Maj. opn., ante, at p. 1135.) I agree, but I would go farther and abrogate the rule entirely. (People v. Robertson, supra, 34 Cal.4th 156, 191 (dis. opn. of Brown, J.) [“Because the second degree felony-murder rule is suspect I believe it would not be missed if we abandoned it”].) As the facts of this case conclusively demonstrate, the application of the second degree felony-murder rule remains irredeemably arbitrary.
The majority concludes, based on a technical parsing of the provision’s grammar, that a violation of Vehicle Code section 2800.2 is not an inherently dangerous felony for purposes of second degree felony murder. However, a commonsense construction of the statute’s language leads to the opposite conclusion—a conclusion that is considerably less counterintuitive. As one lower court stated in addressing the same issue we review here, “It would seem clear as a matter of logic that any felony whose key element is ‘wanton disregard’ for human life necessarily falls within the scope of ‘inherently dangerous’ felonies. ... [][]... [f] .. . [A]part from the ‘wanton disregard’ element, one must also be engaged in the act of fleeing from a pursuing peace officer whose vehicle is displaying lights and sirens. Any high-speed pursuit is inherently dangerous to the lives of the pursuing police officers. In even the most ethereal of abstractions, it is not possible to imagine that the ‘wanton disregard’ of the person fleeing does not encompass disregard for the safety of the pursuing officers.” (People v. Johnson (1993) 15 Cal.App.4th 169, 173-174 [18 Cal.Rptr.2d 650].) Unlike the majority, I find the Court of Appeal’s statement in Johnson persuasive.
*1141Indeed, I agree with Justice Baxter that if any offense should easily qualify as inherently dangerous, Vehicle Code section 2800.2 certainly would. “Subdivision (a) of section 2800.2 gives clear and specific notice that one who, in order to elude police pursuit, drives with reckless indifference to safety is guilty of a felony. Such reckless driving is, of course, inherently dangerous—by definition, it creates a substantial risk that someone will be killed.” (Dis. opn. of Baxter, J., post, at p 1143.) Although it is possible to imagine slow motion pursuits where neither people nor property are harmed, the facts of this case present the more likely scenario: defendant greatly exceeded the speed limit, ran stop signs and stoplights, drove the wrong way on a street and entered downtown Fresno, where the pursuing police officer broke off his chase because he determined that it was too dangerous to proceed. Unfortunately, although the police officer avoided injury by breaking off his pursuit, defendant still entered an intersection on a red light and collided with another vehicle, killing its driver.
“[R]easonable judges can disagree about the legitimacy of contracting or expanding the statutory definition of a felony in order to conclude that a particular violation should be deemed inherently dangerous.” (People v. Robertson, supra, 34 Cal.4th 156, 186 (dis. opn. of Brown, J.).) Two other Court of Appeal decisions have concluded that a violation of Vehicle Code section 2800.2 is an inherently dangerous felony. (People v. Sewell (2000) 80 Cal.App.4th 690, 693-697 [95 Cal.Rptr.2d 600]; People v. Johnson, supra, 15 Cal.App.4th at pp. 173-174.) In this case, two members of this court and a unanimous Court of Appeal reached the same conclusion. The fact that such variations are not just possible, but actually inevitable, suggests a level of arbitrariness we should make every effort to eliminate from the criminal law. For that reason, as well as other concerns discussed more fully in Robertson, I would abrogate the nonstatutory second degree felony-murder rule and leave it to the Legislature to define precisely what conduct subjects a defendant to strict criminal liability.