THE PEOPLE, Plaintiff and Respondent, v. EVERT KEITH HOWARD, Defendant and Appellant, 34 Cal. 4th 1129

Opinion KENNARD, J. Murder is the unlawful killing of a human being, with malice aforethought. (Pen. Code, § 187, subd. (a).) But under the second degree felony-murder rule, the prosecution can obtain a conviction without showing malice if the killing occurred during the commission of an inherently dangerous felony. Is the crime of driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2) an inherently dangerous felony for purposes of the second degree felony-murder rule? We conclude it is not.

I At 12:40 a.m. on May 23, 2002, California Highway Patrol Officer Gary Stephany saw defendant driving a Chevrolet Tahoe (a sport utility vehicle) without a rear license plate, and signaled him to pull over. Defendant stopped on the side of the road. But when Officer Stephany and his partner, Officer Wayne Bernard, got out of their patrol car, defendant restarted the engine and sped to a nearby freeway. The officers gave chase at speeds of up to 90 miles per hour and radioed for assistance. Defendant left the freeway and drove onto a surface street, turning off his car’s headlights.

He ran two stop signs and a red light, and he drove on the wrong side of the road. His speed was 15 to 20 miles over the posted speed limit of 50 miles per hour. At some point, he made a sharp turn onto a small dirt road and escaped. Minutes later, Officer Anthony Arcelus and his partner, Officer Bret Boss, who had been monitoring the pursuit on their car radio, saw the Tahoe with its headlights on again and took up the chase. Officer Arcelus, who was driving, estimated the Tahoe’s speed at more than 80 miles per hour, and he saw it run a stop sign and a traffic light.

By then, the car’s headlights were again turned off. Up to that point, the chase had taken place in rural parts of Fresno County. When the Tahoe started heading toward downtown Fresno, Officer Arcelus gave up the pursuit, fearing that the high-speed chase might cause an accident. About a minute after Officer Arcelus stopped chasing the Tahoe, he saw it run a red light half a mile ahead of him and collide with a car driven by Jeanette Rodriguez. Rodriguez was killed and her husband, a passenger in the car, was seriously injured.

It turned out that the Tahoe that defendant was driving had been stolen earlier that day. Defendant, who was also injured in the crash, was arrested and charged with murder (Pen. Code, § 187), with causing serious bodily injury while evading a police officer (§ 2800.3), and with evading a police officer in willful or wanton disregard for the safety of persons or property (§ 2800.2). At trial, the prosecution called as a witness Laurie Bennett, defendant’s passenger during the chase. She was evasive about the events leading up to the accident.

Ultimately, she admitted that she had told the truth when she explained to a police officer that five or six times during the chase she had begged defendant to let her get out of the car, and that defendant had run a red light at the intersection where the fatal accident occurred. An accident reconstruction expert testified that at the time of the accident the Tahoe was traveling over 80 miles per hour, and Rodriguez’s car was traveling close to the posted speed limit of 35 miles per hour.

John Mikkelson, a pipeline inspector working near the intersection where the accident occurred, said he looked at the signal immediately after hearing the crash of the two colliding cars and saw that it was green for cars traveling in Rodriguez’s direction (and thus presumably red for defendant). Forensic toxicologist Roger Peterson, a witness for the defense, testified that defendant had a “high amount” of methamphetamine in his bloodstream at the time of the accident.

A person under the influence of methamphetamine, Peterson said, might drive at excessive speeds, might have trouble staying in a single lane, and might not notice traffic lights and signs. Defendant also had marijuana in his bloodstream, but not enough to be under the influence. Victim Rodriguez’s bloodstream contained morphine (a metabolite of heroin) and benzoyleconine (a metabolite of cocaine). Based on this evidence, toxicologist Peterson expressed his opinion that Rodriguez was under the influence of heroin, and possibly cocaine when the accident occurred. Defendant testified on his own behalf.

He admitted stealing the Tahoe and fleeing from the Highway Patrol officers. He did so because his probation officer had told him he would go to prison if he was again caught in a stolen car. He could only remember bits and pieces of the chase. He described himself as a skilled driver; his cousin, a race car driver, had taught him to drive “sprint cars” at a racetrack. He saw the victims’ car before the accident but could not recall hitting it.

He could not remember what color the signal light was when he entered the intersection but admitted it was “most likely” red when the car he was driving crashed into the Rodriguez car. The trial court instructed the jury: “Every person who unlawfully kills a human being during the commission of violation of California Vehicle Code

section 2800.2, a felony inherently dangerous to human life, is guilty of the crime of murder in violation of

Section 187 of the Penal Code. [][] In order to prove this crime, each of the following elements must be proved: [(j[] 1. A human being was killed; [f] 2. The killing was unlawful; and [(J[] 3. The' killing occurred during the commission of violation of California Vehicle Code

section 2800.2, a felony inherently dangerous to human life. A violation of Vehicle Code

section 2800.2 is a felony inherently dangerous to human life.” The trial court did not instruct the jury that malice is an element of murder or that the jury could convict defendant if it found that he acted with express or implied malice when he killed victim Rodriguez. In his closing argument, defense counsel contended that defendant did not violate

section 2800.2 because he did not drive with willful and wanton disregard for life or property; that even if defendant violated

section 2800.2 while fleeing from the officers he was not doing so when the accident occurred, because by then the officers were no longer chasing him; and that defendant might not have caused the accident because there was a reasonable doubt that he ran a red light at the time of the incident.

During its deliberations, the jury sent the trial court this note: “It appears in the instructions if there is a guilty verdict in [section] 2800.2 then there must be a guilty verdict for [Penal Code section] 187, yes or no?” The court replied that it was “not in a position to say yes or no”; it then reread the instructions on felony murder and causation. The jury convicted defendant of all counts. The Court of Appeal affirmed. As pertinent here, it rejected defendant’s contention that he could not be convicted under the second degree felony-murder rule because

section 2800.2 is not an inherently dangerous felony. And it rejected defendant’s contention that he could not be convicted of murder because his conduct fit within

section 2800.3 (causing death or serious bodily injury by willful flight from a pursuing peace officer), which he claimed is a “special statute” that bars his conviction for the more general crime of murder. We granted defendant’s petition for review on these two issues: “1. Whether the offense 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) is a felony inherently dangerous to human life for purposes of the second degree felony-murder rule, [f] 2.

Whether the offense of proximately causing death or serious bodily injury by willful flight from a pursuing police officer (Veh. Code, § 2800.3) is a more specific offense precluding application of the second degree felony-murder rule where death occurs during the offense 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).” H Because the second degree felony-murder rule is a court-made rule, it has no statutory definition.

This court has described it thusly: “A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the . . . felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder.” (People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892], italics added.) The rule “eliminates the need for proof of malice in connection with a charge of murder.” (People v. Robertson (2004) 34 Cal.4th 156, 165 [17 Cal.Rptr.3d 604, 95 P.3d 872].) It is not an evidentiary presumption but a substantive rule of law (see People v.

Dillon (1983) 34 Cal.3d 441, 472-476 [194 Cal.Rptr. 390, 668 P.2d 697]; see also People v. Patterson (1989) 49 Cal.3d 615, 626 [262 Cal.Rptr. 195, 778 P.2d 549]), which is based on the theory that “when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved.” (People v.

Patterson, supra, 49 Cal.3d at p. 626.) Because the second degree felony-murder rule is “a judge-made doctrine without any express basis in the Penal Code” (People v. Dillon, supra, 34 Cal.3d at p. 472, fn. 19), its constitutionality has been questioned (see People v. Patterson, supra, 49 Cal.3d at p. 641 (conc. opn. of Panelli, J.)).

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.’ ” (Id. at p. 621.) Therefore, we have repeatedly stressed that the rule “ ‘deserves no extension beyond its required application.’ ” (Id. at p. 622; see also People v. Burroughs (1984) 35 Cal.3d 824, 829 [201 Cal.Rptr. 319, 678 P.2d 894]; People v.

Phillips (1966) 64 Cal.2d 574, 582 [51 Cal.Rptr. 225, 414 P.2d 353].) “In determining whether a felony is inherently dangerous [under the second degree felony-murder rule], the court looks to the elements of the felony in the abstract, ‘not the “particular” facts of the case,’ i.e., not to the defendant’s specific conduct.” (People v. Hansen (1994) 9 Cal.4th 300, 309 [36 Cal.Rptr.2d 609, 885 P.2d 1022].) That is, we determine whether the felony “by its very nature . . . cannot be committed without creating a substantial risk that someone will be killed . . . .” (People v.

Burroughs, supra, 35 Cal.3d at p. 833; see also People v. Robertson, supra, 34 Cal.4th at p. 166.) Felonies that have been held inherently dangerous to life include shooting at an inhabited dwelling (People v. Hansen, supra, 9 Cal.4th at p. 311), poisoning with intent to injure (People v. Mattison (1971) 4 Cal.3d 177 [93 Cal.Rptr. 185, 481 P.2d 193]), 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]), grossly negligent discharge of a firearm (People v.

Clem (2000) 78 Cal.App.4th 346, 353-354 [92 Cal.Rptr.2d 727]; see also People v. Robertson, supra, 34 Cal.4th at pp. 168-169 [quoting Clem with approval]), manufacturing methamphetamine (People v. James (1998) 62 Cal.App.4th 244, 271 [74 Cal.Rptr.2d 7]), 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, 1299 [280 Cal.Rptr. 584]), and reckless or malicious possession of a destructive device (People v. Morse (1992) 2 Cal.App.4th 620, 646 [3 Cal.Rptr.2d 343]).

Felonies that have been held not inherently dangerous to life include practicing medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death (People v. Burroughs, supra, 35 Cal.3d at p. 833); false imprisonment by violence, menace, fraud, or deceit (People v. Henderson, supra, 19 Cal.3d at pp. 92-96); possession of a concealable firearm by a convicted felon (People v. Satchell (1971) 6 Cal.3d 28, 35-41 [98 Cal.Rptr. 33, 489 P.2d 1361]); possession of a sawed-off shotgun (id. at pp. 41-43); escape (People v.

Lopez (1971) 6 Cal.3d 45, 51-52 [98 Cal.Rptr. 44, 489 P.2d 1372]); grand theft (People v. Phillips, supra, 64 Cal.2d at pp. 580-583); conspiracy to possess methedrine (People v. Williams (1965) 63 Cal.2d 452, 458 [47 Cal.Rptr. 7, 406 P.2d 647]); extortion (People v. Smith (1998) 62 Cal.App.4th 1233, 1236-1238 [72 Cal.Rptr.2d 918]); furnishing phencyclidine (People v. Taylor (1992) 6 Cal.App.4th 1084, 1099 [8 Cal.Rptr.2d 439]); and child endangerment or abuse (People v. Lee (1991) 234 Cal.App.3d 1214, 1229 [286 Cal.Rptr. 117]). m In determining whether

section 2800.2 is an offense inherently dangerous to life, we begin by reviewing the statutory scheme. Three statutes punish those who flee from police officers: sections 2800.1, 2800.2, and 2800.3.

Section 2800.1 states that any motorist who “with the intent to evade, willfully flees or otherwise attempts to elude” a peace officer pursuing on a motor vehicle or bicycle is, under specified circumstances, guilty of a misdemeanor. Under

section 2800.3, when “willful flight or attempt to elude a pursuing peace officer in violation of

Section 2800.1 proximately causes death or serious bodily injury to any person,” the offense is a wobbler (an offense that can be a felony or a misdemeanor, at the trial court’s discretion), punishable by up to five years in prison.

Section 2800.2, which was the basis for defendant’s conviction under the second degree felony-murder rule, provides: “(

a) If a person flees or attempts to elude a pursuing peace officer in violation of

Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail .... The court may also impose a fine ... or may impose both that imprisonment or confinement and fine. “(

b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under

Section 12810 occur, or damage to property occurs.” In concluding that

section 2800.2 is an inherently dangerous felony, the Court of Appeal relied heavily on People v. Johnson (1993) 15 Cal.App.4th 169 [18 Cal.Rptr.2d 650]. There the Court of Appeal, construing an earlier version of

section 2800.2 that was essentially the same as what is now subdivision (

a) of that section, held that driving with “willful or wanton disregard for the safety of persons or property” was inherently dangerous to life. We need not decide, however, whether Johnson was correct, because in 1996, three years after Johnson was decided, the Legislature amended

section 2800.2 to add subdivision (b). (Stats. 1996, ch. 420, § 1.) Subdivision (

b) very broadly defines the term “willful or wanton disregard for the safety of persons or property,” as used in subdivision (a), to include any flight from an officer during which the motorist commits three traffic violations that are assigned a “point count” under

section 12810, or which results in “damage to property.” Violations that are assigned points under

section 12810 and can be committed without endangering human life include driving an unregistered vehicle owned by the driver (§§ 40001, 12810, subds. (e), (g)(1)), driving with a suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a complete stop at a stop sign (§§ 22450, 12810, subd. (e)), and making a right turn without signaling for 100 feet before turning (§§ 22108, 12810, subd. (e)).

The Court of Appeal here rejected defendant’s contention that because of the broad definition of the phrase “willful or wanton disregard for the safety of persons or property” in subdivision (

b) of

section 2800.2, violations of

section 2800.2 are not inherently dangerous to life for the purposes of the second degree felony-murder rule. The Court of Appeal quoted People v. Sewell (2000) 80 Cal.App.4th 690 [95 Cal.Rptr.2d 600], which concluded that subdivision (b) “did not change the elements of the

section 2800.2 offense, in the abstract, or its inherently dangerous nature.” (Sewell, at p. 694.) But, as we pointed out in the preceding paragraph, subdivision (

b) greatly expanded the meaning of the quoted statutory phrase to include conduct that ordinarily would not be considered particularly dangerous. The Attorney General contends that when the Legislature amended

section 2800.2 to add subdivision (b), it did not intend to make the second degree felony-murder rule inapplicable to violations of that section. The legislative history of the amendment makes no mention, however, of the second degree felony-murder rule; nor does the legislative history pertaining to the original enactment in 1988 of

section 2800.2 (Stats. 1988, ch. 504, § 3, p. 1919). In all likelihood, the Legislature did not consider the effect that either the statute’s original enactment or its amendment would have on murder prosecutions. In the absence of any evidence of legislative intent, we assume that the Legislature contemplated that we would determine the application of the second degree felony-murder rule to violations of

section 2800.2 based on our long-established decisions holding that the rule applies only to felonies that are inherently dangerous in the abstract. (People v. Robertson, supra, 34 Cal.4th at p. 166; People v. Hansen, supra, 9 Cal.4th at p. 309; People v. Phillips, supra, 64 Cal.2d at p. 582; People v. Williams, supra, 63 Cal.2d at p. 458, fn. 5.) As we have explained in this opinion, a violation of

section 2800.2 is not, in the abstract, inherently dangerous to human life. Therefore, the second degree felony-murder rule does not apply when a killing occurs during a violation of

section 2800.2. Thus, the trial court here erred when it instructed the jury that it should find defendant guilty of second degree murder if it found that, while violating

section 2800.2, defendant fatally injured Jeanette Rodriguez when their cars collided. The parties have not briefed the question of whether the trial court’s instructional error was prejudicial. That is a matter to be considered by the Court of Appeal on remand. Conclusion Nothing here should be read as saying that a motorist who kills an innocent person in a hazardous, high-speed flight from a police officer should not be convicted of murder.

A jury may well find that the motorist has acted with malice by driving with conscious disregard for the lives of others, and thus is guilty of murder. (See generally People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279].) But, as we have explained, not all violations of

section 2800.2 pose a danger to human life. Therefore, the prosecution may not (as it did here) resort to the second degree felony-murder rule to remove from the jury’s consideration the question whether a killing that occurred during a violation of

section 2800.2 was done with malice. We reverse the judgment of the Court of Appeal, which upheld defendant’s conviction for second degree murder, and remand the matter to that court for further proceedings consistent with this opinion. George, C. J., Werdegar, J., Chin, J., and Moreno, J., concurred. Unless otherwise stated, all further statutory citations are to the Vehicle Code. Justice Baxter’s dissenting opinion stresses that the trial court’s instructions to the jury left the phrase “willful or wanton disregard for the safety of persons or property” undefined, and did not mention the Legislature’s broad definition of that phrase in subdivision (

b) of

section 2800.2. (Dis. opn., post, at p. 1145.) Thus, the dissent argues, this court should not consider the latter definition in deciding whether

section 2800.2 is inherently dangerous. But in determining whether a felony is inherently dangerous, we must consider the law enacted by the Legislature, regardless of the jury instructions in a particular case. The dissent also notes that “although the Legislature elected to include subdivision (

b) as part of

section 2800.2, it could just have easily have added a separate section, establishing a distinct felonious offense of committing three ‘points’ violations while driving to elude a peace officer.” (Dis. opn., post, at p. 1144.) True. But the Legislature did not do so. To determine whether

section 2800.2 is inherently dangerous, we must examine the law the Legislature did enact, not a hypothetical law the Legislature could have enacted. Defendant asserts that when the Legislature enacted

section 2800.3, it created a specific statute that specifies the penalty when flight from a pursuing peace officer results in death or serious bodily injury, thus barring his conviction of the more general crime of second degree murder under the second degree felony-murder rule, based on a violation of

section 2800.2. We need not address this contention, because of our conclusion that the second degree felony-murder rule does not apply to violations of

section 2800.2. Justice Baxter’s dissenting opinion argues forcefully that the trial court’s instructional error was harmless because (1) there was overwhelming evidence that defendant acted with implied malice, and (2) the jury implicitly found, based on the trial court’s instructions, that defendant acted with malice. (Dis. opn., post, at pp. 1144-1147.) We express no views on Justice Baxter’s arguments, which should be considered by the Court of Appeal on remand. To the extent it is inconsistent with this opinion, we disapprove People v. Sewell, supra, 80 Cal.App.4th 690, which held that a murder conviction under the second degree felony-murder rule can be based on a violation of

section 2800.2.