THE PEOPLE, Plaintiff and Respondent, v. MICHAEL HANSEN, Defendant and Appellant, 9 Cal. 4th 300

Opinion GEORGE, J. In this case we must determine whether the offense of discharging a firearm at an inhabited dwelling house (Pen. Code, § 246) is a felony “inherently dangerous to human life” for purposes of the second degree felony-murder doctrine, and, if so, whether that doctrine nonetheless is inapplicable in the present case under the so-called “merger” doctrine applied in People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323] and its progeny.

For the reasons explained hereafter, we conclude that this offense, for such purposes, is a felony inherently dangerous to human life and does not “merge” with a resulting homicide so as to preclude application of the felony-murder doctrine. Because the Court of Appeal reached a similar conclusion, we affirm the judgment of that court upholding defendant’s conviction of second degree murder. I On September 19, 1991, defendant Michael Hansen, together with Rudolfo Andrade and Alexander Maycott, planned to purchase $40 worth of methamphetamine.

With that purpose, defendant, accompanied by his girlfriend Kimberly Geldon and Maycott, drove in defendant’s Camaro to an apartment duplex located in the City of San Diego. Upon arriving at the duplex, defendant pounded on the door of the upstairs apartment where Christina Almenar resided with her two children. When he received no response, defendant proceeded to return to his automobile and was approached by Michael Behaves. Behaves resided in the downstairs apartment with Martha Almenar (Christina’s sister) and Martha’s two children, Diane Rosalez, thirteen years of age, and Louie Miranda, five years of age.

At the time, Diane and Louie were outside with Behaves helping him with yard work. In response to a question from Behaves, defendant said he was looking for Christina. When Behaves stated he had not seen her, defendant asked whether Behaves would be able to obtain some crystal methamphetamine (speed). After making a telephone call, Behaves informed defendant that he would be able to do so. Defendant said he would attempt to purchase the drug elsewhere but, if unsuccessful, would return. Defendant and his companions departed but returned approximately 20 minutes later.

Defendant, accompanied by Behaves, Maycott, and Geldon, then drove a short distance to another apartment complex. Defendant parked his vehicle, gave Behaves two $20 bills, and told Behaves he would wait while Behaves obtained the methamphetamine. Behaves said he would be back shortly. When Behaves failed to return, defendant and his companions proceeded to Behaves’s apartment. Defendant knocked on the door and the windows. Diane and Louie were inside the apartment alone but did not respond. Their mother, Martha, had left the apartment to meet Behaves, who had telephoned her after eluding defendant.

After meeting Behaves at a hardware store, Martha telephoned her children from a public telephone booth. Diane answered and told her mother that the “guys in the Camaro” had returned, pounded on the door, and then had left. Meanwhile, defendant, Maycott, and Geldon returned to the location where Andrade was waiting for them, acquiring en route a handgun from an acquaintance. The three men then decided to return to Behaves’s apartment with the objective either of recovering their money or physically assaulting Behaves.

At approximately 7:30 p.m., defendant approached the apartment building in his automobile with the lights turned off, and then from the vehicle fired the handgun repeatedly at the dwelling. At the time, Diane was inside the apartment, in the living room with her brother. The kitchen and living room lights were on. Diane was struck fatally in the head by one of the bullets fired by defendant. On the basis of information furnished by witnesses to the shooting, the police were able to trace to defendant the vehicle from which the shots had been fired.

On September 20, at approximately 3 a.m., police officers arrested defendant at the room of a motel where he was staying. Searching the trunk of his Camaro, the police discovered a nine-millimeter semiautomatic handgun and an empty ammunition clip for the weapon. Five bullet holes were found at the scene of the homicide inside the apartment. It later was determined that shell casings and three bullets recovered at that location had been fired from the handgun found inside the trunk of defendant’s vehicle. That same morning, at 7 a.m., defendant was advised of his Miranda rights (Miranda v.

Arizona (1965) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) and waived them. He then confessed to having fired several shots from a handgun aimed at the apartment building. He stated that he had been v/aiting for someone whom he believed “took off with forty bucks” belonging to him, that he was shooting at “[j]ust the house,” and that he would not have engaged in this conduct had he known “those kids were in there.” At trial, as part of the defense case, defendant testified that on the day of the shooting he had consumed a substantial quantity of alcohol and some crystal methamphetamine.

He further testified that, when he initially returned to Behaves’s apartment, he had observed the lights were on, but after knocking on the door and receiving no response, he believed no one was inside. He denied any recollection of actually having fired the shots at the apartment, although he remembered hearing “four or five loud noises,” and denied having intended to harm anyone. A neurologist and a neuropsychologist testified that defendant suffered from a mild prefrontal lobe injury that, in conjunction with the use of alcohol and drugs, could result in sudden, unplanned, and impulsive actions.

A toxicologist testified regarding defendant’s blood-alcohol level and its possible effects, based upon defendant’s report as to the amount of alcohol he had consumed prior to the shooting. (His testimony did not refer to the possible effect of defendant’s use of crystal methamphetamine, as testified to by defendant.) The trial court instructed the jury on several theories of murder, including second degree felony murder as an unlawful killing that occurs during the commission or attempted commission of a felony inherently dangerous to human life, and further instructed that the felony of shooting at an inhabited dwelling is inherently dangerous to human life.

The jury returned a verdict finding defendant guilty of second degree murder (without specifying the theory upon which the conviction was based), and found true the allegation that he personally used a firearm during the commission of that offense (§ 12022.5, subd. (a)). The jury also found defendant guilty of discharging a firearm at an inhabited dwelling. At sentencing, the trial court imposed a term of imprisonment of 15 years to life for the second degree murder conviction, plus a consecutive term of 4 years for the personal-use-of-a-firearm enhancement.

The court also imposed a term of five years for the offense of shooting at an inhabited dwelling, but stayed the sentence for that offense pursuant to

section 654. On appeal, defendant asserted, among other contentions, that the trial court erred in instructing the jury on second degree felony murder based upon the underlying felony of discharging a firearm at an inhabited dwelling, because the latter offense merged with the resulting homicide within the meaning of People v. Ireland, supra, 70 Cal.2d 522. Defendant relied upon People v. Wesley (1970) 10 Cal.App.3d 902, 905-910 [89 Cal.Rptr. 377], a decision holding that the offense proscribed by

section 246 was an integral part of the resulting homicide and therefore could not support a second degree felony-murder conviction. Defendant also asserted as error the imposition of the firearm-use enhancement. Concluding the underlying felony proscribed by

section 246 did not merge with the homicide, the Court of Appeal affirmed the conviction of second degree murder but struck the

section 12022.5 firearm-use enhancement. II Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (§ 187, subd. (a).) Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. (§§ 187, subd. (a), 189; People v.

Nieto Benitez (1992) 4 Cal.4th 91, 102 [13 Cal.Rptr.2d 864, 840 P.2d 969].) Malice may be express or implied. (§ 188.) It is express “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) It is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.) We have held that implied malice has both a physical and a mental component, the physical component being the performance of “ ‘an act, the natural consequences of which are dangerous to life,’ ” and the mental component being the requirement that the defendant “ ‘ knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.’ ” (People v.

Patterson (1989) 49 Cal.3d 615, 626 [262 Cal.Rptr. 195, 778 P.2d 549]; People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279].) The felony-murder rule imputes the requisite malice for a minder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to human life. “Under well-settled principles of criminal liability a person who kills—whether or not he is engaged in an independent felony at the time—is guilty of murder if he acts with malice aforethought.

The felony-murder doctrine, whose ostensible purpose is to deter those engaged in felonies from killing negligently or accidentally, operates to posit the existence of that crucial mental state—and thereby to render irrelevant evidence of actual malice or the lack thereof—when the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it.” (People v. Satchell (1971) 6 Cal.3d 28, 43 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383], cited by People v.

Patterson, supra, 49 Cal. 3d 615, 626.) The felony-murder rule applies to both first and second degree murder. Application of the first degree felony-murder rule is invoked by the perpetration of one of the felonies enumerated in

section 189. In People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892], the court restricted the felonies that could support a conviction of second degree murder, based upon a felony-murder theory, to those felonies that are “inherently dangerous to human life.” We have explained that the justification for the imputation of implied malice under these circumstances is 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 . . . .” (People v.

Patterson, supra, 49 Cal.3d at p. 626.) We also have reasoned, that, ‘“[i]f the felony is not inherently dangerous, it is highly improbable that the potential felon will be deterred; he will not anticipate that any injury or death might arise solely from the fact that he will commit the felony.’ ” (People v. Burroughs (1984) 35 Cal.3d 824, 829 [201 Cal.Rptr. 319, 678 P.2d 894].) Thus, under the latter circumstances the commission of the felony could not serve logically as the basis for imputation of malice. (See People v.

Henderson (1977) 19 Cal.3d 86, 93-94 [137 Cal.Rptr. 1, 560 P.2d 1180].) In determining whether a felony is inherently dangerous, 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. Williams (1965) 63 Cal.2d 452, 458, fn. 5 [47 Cal.Rptr. 7, 406 P.2d 647].) Past decisions of this court have explained further the concept of an inherently dangerous felony. In People v.

Burroughs, supra, 35 Cal.3d 824, 833, we held that an inherently dangerous felony is one which, “by its very nature, . . . cannot be committed without creating a substantial risk that someone will be killed . . . .” And, most recently, in People v.

Patterson, supra, 49 Cal.3d 615, we specified that, “for purposes of the second degree felony-murder doctrine, an ‘inherently dangerous felony’ is an offense carrying ‘a high probability’ that death will result.” (Id., at p. 627.) Felonies that have been found inherently dangerous to human life, in the abstract—thus supporting application of the second degree felony-murder rule—include furnishing a poisonous substance (methyl alcohol) (People v. Mattison (1971) 4 Cal.3d 177 [93 Cal.Rptr. 185, 481 P.2d 193]), reckless or malicious possession of a destructive device (People v.

Morse (1992) 2 Cal.App.4th 620, 646 [3 Cal.Rptr.2d 343]), and kidnapping for ransom (People v. Ordonez (1991) 226 Cal.App.3d 1207, 1225 [277 Cal.Rptr. 382]). The initial question presented in the case before us is whether the underlying felony involved—willful discharge of a firearm at an inhabited dwelling—is an inherently dangerous felony for purposes of the second degree felony-murder rule. The offense in question is defined in

section 246, which provides in pertinent part: “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house ... is guilty of a felony ... .[¶] As used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.” As we shall explain, we conclude that this felony, considered in the abstract, involves a high probability that death will result and therefore is an inherently dangerous felony under the governing principles set forth above, for purposes of the second degree felony-murder doctrine.

Although our court has not had occasion previously to render a direct holding on the question whether the offense proscribed by

section 246 is an inherently dangerous felony for purposes of the second degree felony-murder doctrine, the reasoning and language of one of our prior decisions— People v. Satchell, supra, 6 Cal.3d 28—provide a rather clear indication of this court’s view on this issue. In Satchell, the court held the felony of possession of a concealable firearm by a felon (§ 12021), considered in the abstract, was not inherently dangerous to human life and therefore would not support an instruction on second degree felony murder.

The court concluded that “mere passive possession” of a firearm, even by a felon, could not properly supply the element of malice in a murder prosecution. (6 Cal.3d at p. 42.) The court went on to say, however, that if passive possession ripened into a felonious act in which danger to human life was inherent, the purposes of the felony-murder rule would be served by its application, because “it is the deterrence of such acts by felons which the rule is designed to accomplish.” (6 Cal.3d at p. 43.) The court noted that a “ready example” of such a felony was the act proscribed by

section 246, discharging a firearm at an inhabited dwelling. (6 Cal.3d at p. 43, fii. 22.) Although the pertinent language in Satchell clearly was dictum, the reasoning underlying this language remains sound following our decision in People v. Patterson, supra, 49 Cal.3d 615. The discharge of a firearm at an inhabited dwelling house—by definition, a dwelling “currently being used for dwelling purposes, whether occupied or not” (§ 246)—is a felony whose commission inherently involves a danger to human life. An inhabited dwelling house is one in which persons reside (People v.

Rodriguez (1986) 42 Cal.3d 1005, 1018 [232 Cal.Rptr. 132, 728 P.2d 202]) and where occupants “are generally in or around the premises.” (People v. White (1992) 4 Cal.App.4th 1299, 1303 [6 Cal.Rptr.2d 259], italics in original.) In firing a gun at such a structure, there always will exist a significant likelihood that an occupant may be present. Although it is true that a defendant may be guilty of this felony even if, at the time of the shooting, the residents of the inhabited dwelling happen to be absent (People v.

Rodriguez, supra, 42 Cal.3d at p. 1018), the offense nonetheless is one that, viewed in the abstract—as shooting at a structure that currently is used for dwelling purposes—poses a great risk or “high probability” of death within the meaning of Patterson. The nature of the other acts proscribed by

section 246 reinforces the conclusion that the Legislature viewed the offense of discharging a firearm at an inhabited dwelling as posing a risk of death comparable to that involved in shooting at an occupied building or motor vehicle. Furthermore, application of the second degree felony-murder rule to a homicide resulting from a violation of

section 246 directly would serve the fundamental rationale of the felony-murder rule—the deterrence of negligent or accidental killings in the course of the commission of dangerous felonies. The tragic death of innocent and often random victims, both young and old, as the result of the discharge of firearms, has become an alarmingly common occurrence in our society—a phenomenon of enormous concern to the public.

By providing notice to persons inclined to willfully discharge a firearm at an inhabited dwelling—even to those individuals who would do so merely to frighten or intimidate the occupants, or to “leave their calling card”—that such persons will be guilty of murder should their conduct result in the all-too-likely fatal injury of another, the felony-murder rule may serve to deter this type of reprehensible conduct, which has created a climate of fear for significant numbers of Californians even in the privacy of their own homes.

Accordingly, we hold that the offense of discharging a firearm at an inhabited dwelling is an “inherently dangerous felony” for purposes of the second degree felony-murder rule. III Defendant contends that, even if the

section 246 felony of discharging a firearm is inherently dangerous to human life, the commission of that felony in the present case “merged” with the resulting homicide, within the meaning of People v. Ireland, supra, 70 Cal.2d 522, thereby precluding application of the second degree felony-murder rule. As we shall explain, defendant’s contention rests upon an unduly expansive view of the scope of the “merger” doctrine applied in Ireland.

Prior to our decision in Ireland, the “merger” doctrine had been developed in other jurisdictions as a shorthand explanation for the conclusion that the felony-murder rule should not be applied in circumstances where the only underlying (or “predicate”) felony committed by the defendant was assault. The name of the doctrine derived from the characterization of the assault as an offense that “merged” with the resulting homicide.

In explaining the basis for the merger doctrine, courts and legal commentators reasoned that, because a homicide generally results from the commission of an assault, every felonious assault ending in death automatically would be elevated to murder in the event a felonious assault could serve as the predicate felony for purposes of the felony-murder doctrine.

Consequently, application of the felony-murder rule to felonious assaults would usurp most of the law of homicide, relieve the prosecution in the great majority of homicide cases of the burden of having to prove malice in order to obtain a murder conviction, and thereby frustrate the Legislature’s intent to punish certain felonious assaults resulting in death (those committed with malice aforethought, and therefore punishable as murder) more harshly than other felonious assaults that happened to result in death (those committed without malice aforethought, and therefore punishable as manslaughter). (See Note, The Doctrine of Merger in Felony-Murder and Misdemeanor-Manslaughter (1960) 35 St.

Johns L. Rev. 109, 117; see also Crump & Crump, In Defense of the Felony Murder Doctrine (1985) 8 Harv. J. L. & Pub. Pol’y. 359, 379; Note, Application of the Merger Doctrine to the Felony Murder Rule in Texas: The Merger Muddle (1990) 42 Baylor L. Rev. 535; People v. Moran (1927) 246 N.Y. 100 [158 N.E. 35, 36-37] (opn. of Cardozo, C.

J.).) One commentator explains that the merger rule applied to assaults is supported by the policy of preserving some meaningful domain in which the Legislature’s careful gradation of homicide offenses can be implemented. (Crump & Crump, In Defense of the Felony Murder Doctrine, op. cit. supra, 8 Harv. J. L. & Pub. Pol’y. 359, 379.) In People v. Ireland, supra, 70 Cal.2d 522, we adopted the merger rule in a case involving the underlying felony of assault with a deadly weapon, where the defendant had shot and killed his wife.

The jury was instructed that it could return a second degree felony-murder verdict based upon the underlying felony of assault with a deadly weapon, and the defendant was convicted of second degree murder. On appeal, this court reversed, reasoning that “[t]o 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.” (70 Cal.2d at p. 539.) The court therefore concluded that the offense of assault with a deadly weapon, which was “an integral part of’ and “included in fact" within the homicide, could not support a second degree felony-murder instruction. {Ibid.) Subsequent decisions have applied the Ireland rule to other felonies involving assault or assault with a deadly weapon. (See People v. Smith (1984) 35 Cal.3d 798 [201 Cal.Rptr. 311, 678 P.2d 886] [felony child abuse of the assaultive category]; People v.

Wilson (1969) 1 Cal.3d 431, 440 [82 Cal.Rptr. 494, 462 P.2d 22] [burglary with intent to commit the felony of assault with a deadly weapon]; People v. Landry (1989) 212 Cal.App.3d 1428, 1437-1439 [261 Cal.Rptr. 254] [assault with a deadly weapon].) Our court, however, has not extended the Ireland doctrine beyond the context of assault, even under circumstances in which the underlying felony plausibly could be characterized as “an integral part of’ and “included in fact within” the resulting homicide. The decision in People v. Mattison, supra, 4 Cal.3d 177, provides an apt example.

In that case, the defendant and the victim both were inmates of a correctional institution. The defendant worked as a technician in the medical laboratory. He previously had offered to sell alcohol to inmates, leading the victim, an alcoholic, to seek alcohol from him. The defendant supplied the victim with methyl alcohol, resulting in the victim’s death by methyl alcohol poisoning. At trial, the court instructed on felony murder based upon the felony of mixing poison with a beverage, an offense proscribed by the then current version of

section 347 (“ ‘Every person who wilfully mingles any poison with any food, drink or medicine, with intent that the same shall be taken by any human being to his injury, is guilty of a felony.’ ”) (4 Cal.3d at p. 184.) The defendant was convicted of second degree murder.

On appeal, contending that the trial court had erred in instructing the jury on felony murder, the defendant maintained that, on the facts of his case, the underlying felony (§ 347) was “an integral part of’ and “included in fact within” the resulting murder, precluding application of the felony-murder rule. (4 Cal.3d at p. 185.) In Mattison, supra, 4 Cal.3d 177, in rejecting the defendant’s contention and affirming his second degree murder conviction, we found that the predicate felony (§ 347) presented an “entirely different situation from the one that confronted us in Ireland,” where the underlying felony was assault with a deadly weapon. (4 Cal.3d at p. 185.) We concluded that the merger rule was inapplicable because, in furnishing the methyl alcohol to the victim, the defendant exhibited a collateral and independent felonious design that was separate from the resulting homicide.

Adopting the rule and reasoning articulated in People v. Taylor (1970) 11 Cal.App.3d 57 [89 Cal.Rptr. 697], we held that where the underlying felony is committed with a design collateral to, or independent of, an intent to cause injury that would result in death, “[g]iving a felony-murder instruction in such a situation serves rather than subverts the purpose of the rule.” (4 Cal.3d at p. 185.) The Court of Appeal’s decision in People v. Taylor, supra, 11 Cal.App.3d 57, upon which Mattison explicitly relied, provides additional guidance concerning the rationale of our decision in Mattison.

In Taylor, the victim died as a result of an overdose of heroin, which had been furnished to her by the defendant. The defendant was convicted of second degree murder, and the question presented was whether application of the felony-murder rule constituted error under Ireland.

The Court of Appeal in Taylor first acknowledged the confusion that arose from the circumstance that, although Ireland involved an assault with a deadly weapon (a felony to which the merger rule traditionally has been applied), the broad language of Ireland could be interpreted as extending that rule to all felonies that constitute “an integral part of the homicide,” potentially encompassing all felonies closely related to a homicide (and therefore possibly every felony inherently dangerous to human life). (Id., at p. 60.) To clarify the ambiguity created by Ireland, the Court of Appeal in Taylor sought to pinpoint the precise rationale of the rule in Ireland, in the process reviewing the New York decisions, cited by the court in Ireland, that had applied the merger doctrine. (Id., at pp. 60-61.) After analyzing New York decisional law, and concluding that Ireland’s “integral part of the homicide” language did not constitute the crucial test in determining the existence of merger, the court in Taylor held that a felony does not merge with a homicide where the act causing death was committed with a collateral and independent felonious design separate from the intent to inflict the injury that caused death. (11 Cal.App.3d at pp. 61, 63.) The court explained its reasoning as follows: when the Legislature has prescribed that an assault resulting in death constitutes second degree murder if the felon acts with malice, it would subvert the legislative intent for a court to apply the felony-murder rule automatically to elevate all felonious assaults resulting in death to second degree murder even where the felon does not act with malice.

In other words, if the felony-murder rule were applied to felonious assaults, all such assaults ending in death would constitute murder, effectively eliminating the requirement of malice—a result clearly contrary to legislative intent.

The court in Taylor further explained, however, that when the underlying or predicate felony is not assault, but rather is a felony such as the furnishing of heroin involved in Taylor, application of the felony-murder rule would not subvert the legislative intent, because “this is simply not a situation where the Legislature has demanded a showing of actual malice, as distinguished from malice implied in law by way of the felony-murder rule.” (Id., at p. 63, fn. omitted.) We agree with Taylor’s definition of the scope of the Ireland rule and its rejection of the premise that Ireland’s “integral part of the homicide” language constitutes the crucial test in determining the existence of merger.

Such a test would be inconsistent with the underlying rule that only felonies “inherently dangerous to human life” are sufficiently indicative of a defendant’s culpable mens rea to warrant application of the felony-murder rule. (See People v.

Satchell, supra, 6 Cal.3d 28, 43.) The more dangerous the felony, the more likely it is that a death may result directly from the commission of the felony, but resort to the “integral part of the homicide” language would preclude application of the felony-murder rule for those felonies that are most likely to result in death and that are, consequently, the felonies as to which the felony-murder doctrine is most likely to act as a deterrent (because the perpetrator could foresee the great likelihood that death may result, negligently or accidentally).

We decline, however, to adopt as the critical test determinative of merger in all cases the following language that appears in Taylor, quoting a decision of a New York court: that the rationale for the merger doctrine does not encompass a felony “ ‘committed with a collateral and independent felonious design.’ ” (People v. Taylor, supra, 11 Cal.App.3d at p. 63; see also People v.

Burton (1971) 6 Cal.3d 375, 387 [99 Cal.Rptr. 1, 491 P.2d 793].) Under such a test, a felon who acts with a purpose other than specifically to inflict injury upon someone—for example, with the intent to sell narcotics for financial gain, or to discharge a firearm at a building solely to intimidate the occupants—is subject to greater criminal liability for

an act resulting in death than a person who actually intends to injure the person of the victim. Rather than rely upon a somewhat artificial test that may lead to an anomalous result, we focus upon the principles and rationale underlying the foregoing language in Taylor, 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.

In the present case, as in Mattison and Taylor, application of the second degree felony-murder rule would not result in the subversion of legislative intent. Most homicides do not result from violations of

section 246, and thus, unlike the situation in People v. Ireland, supra, 70 Cal.2d 522, application of the felony-murder doctrine in the present context will not have the effect of “preclud[ing] the jury from considering the issue of malice aforethought ... [in] the great majority of all homicides.” (Id., at p. 539.) Similarly, application of the felony-murder doctrine in the case before us would not frustrate the Legislature’s deliberate calibration of punishment for assaultive conduct resulting in death, based upon the presence or absence of malice aforethought.

As in Taylor, this is not a situation in which the Legislature has demanded a showing of actual malice (apart from the statutory requirement that the firearm be discharged “maliciously and willfully”) in order to support a second degree murder conviction. Indeed, as discussed above, application of the felony-murder rule, when a violation of

section 246 results in the death of a person, clearly is consistent with the traditionally recognized purpose of the second degree felony-murder doctrine—namely the deterrence of negligent or accidental killings that occur in the course of the commission of dangerous felonies. The Texas Court of Criminal Appeals recently applied similar reasoning in upholding a murder conviction that occurred after a jury was instructed on felony murder based upon underlying felonious conduct involving the discharge of a firearm into an occupied dwelling. (Aguirre v.

State (Tex.Crim.App. 1987) 732 S.W.2d 320, 324-325 [opn. on rehg.].) The court viewed the defendant’s conduct of “attempting to blow open a door with a shotgun” as an offense that did not “merge” with the resulting homicide. (Id., at p. 325.) In rendering our decision in the present case, we disapprove of the holding in People v. Wesley, supra, 10 Cal.App.3d 902, in which the Court of Appeal, in construing Ireland, concluded that the felony proscribed by

section 246 merged with a resulting homicide because the felony was in fact “an integral part” and a necessary element of the homicide. (10 Cal.App.3d at p. 907.) As is apparent from our earlier discussion in the present opinion, the appellate court’s reliance in Wesley upon this particular language, as providing the crucial test in determining the existence of merger, was misplaced.

For the foregoing reasons, we conclude that the offense of discharging a firearm at an inhabited dwelling house does not “merge” with a resulting homicide within the meaning of the Ireland doctrine, and therefore that this offense will support a conviction of second degree felony murder. Accordingly, the trial court did not err in instructing the jury on a second degree felony-murder theory based upon the underlying felony of discharging a firearm at an inhabited dwelling house.

IV The Court of Appeal struck the four-year term of imprisonment imposed for the firearm-use enhancement (§ 12022.5, subd. (a)) on the ground that use of a firearm is an element of second degree felony murder when such murder is based upon the underlying felony of discharging a firearm at an inhabited dwelling (§ 246).

The Court of Appeal reasoned that, although the jury returned a general verdict convicting defendant of second degree murder (without specifying the theory relied upon), the jury “ found true all elements] necessary for a conviction of murder based on the felony-murder,” and firearm use was an essential element of the underlying felony of discharging a firearm at an inhabited dwelling. The People contend the Court of Appeal erred in striking the firearm-use enhancement, because firearm use is not an essential component of the crime of second degree murder considered in the abstract. We agree.

The Court of Appeal erred in its construction of the limitation upon the application of the firearm-use enhancement, set forth in

section 12022.5, subdivision (a), which at the time of sentencing provided in pertinent part: “[A]ny person who personally uses a firearm in the commission . . . of a felony shall, upon conviction of that felony ... be punished by an additional term of imprisonment in the state prison for three, four, or five years, unless use of a firearm is an element of the offense of which he or she was convicted.” (Italics added.) The phrase “element of the offense” signifies an essential component of the legal definition of the crime, considered in the abstract. (People v.

Ross (1994) 28 Cal.App.4th 1151, 1156 [33 Cal.Rptr.2d 894]; People v. Zamora (1991) 230 Cal.App.3d 1627, 1636 [282 Cal.Rptr. 100].) In the present case, the crime of which defendant was convicted was second degree murder. That offense, considered in the abstract, does not include use of a firearm as an element. Second degree murder may be committed in a myriad of ways, some that involve use of a firearm, and others, such as stabbing, poisoning, or strangling, that do not involve use of this type of weapon. Under

section 12022.5, subdivision (a), the enhancement applies unless “use of a firearm is an element of the offense,” and not merely the means by which the offense was committed or the factual predicate of a theory upon which the conviction was based. (See People v. Ross, supra, 28 Cal.App.4th at p. 1156; People v.

Quesada (1980) 113 Cal.App.3d 533, 540 [169 Cal.Rptr. 881] [“The crime of manslaughter may be committed in many ways without a firearm; the fact that this particular crime was committed with use of a firearm does not make such use an ‘essential element’ of the offense.”].) In decreeing that murder committed by use of a firearm should be punished more severely than murder committed without resort to such a weapon, the Legislature has not exempted those convictions in which the murder conviction rests upon the felony-murder rule.

For these reasons, the trial court did not err in imposing an additional four-year term of imprisonment for the firearm-use enhancement. V The judgment of the Court of Appeal is reversed to the extent that it strikes the firearm-use enhancement, and in all other respects the judgment is affirmed. Lucas, C. J., Arabian, J., and Baxter, J., concurred. All further references are to the Penal Code unless otherwise indicated.

Section 246 provides in full: “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in

Section 362 of the Vehicle Code, or inhabited camper, as defined in

Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year. [¶] As used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.” As amended in 1994,

section 12022.5, subdivision (a), provides for an additional term of imprisonment for three, four, or ten years. (Stats. 1994, First Ex. Sess. 1993-1994, ch. 33, §6.)