second degree felony-murder rule in California

2023Discussing People v. Patterson (1989) 49 Cal.3d 615 , we noted that “[s]econd degree murder may be committed by a deliberate killing, with malice but without premeditation, or by a killing in the course of a felony inherently dangerous to human life.” (Ordonez, supra, 226 Cal.App.3d at p. 1223 .) We continued, “‘[F]or purposes of the second degree felony-murder doctrine, an “inherently dangerous felony” is an offense carrying “a high probability” that death will result.’ (People v. Patterson, supra, 49 Cal.3d at p. 627 .) . . . . [¶] We have no doubt that kidnapping for ransom, extortion or re

2023Discussing People v. Patterson (1989) 49 Cal.3d 615 , we noted that “[s]econd degree murder may be committed by a deliberate killing, with malice but without premeditation, or by a killing in the course of a felony inherently dangerous to human life.” (Ordonez, supra, 226 Cal.App.3d at p. 1223 .) We continued, “‘[F]or purposes of the second degree felony-murder doctrine, an “inherently dangerous felony” is an offense carrying “a high probability” that death will result.’ (People v. Patterson, supra, 49 Cal.3d at p. 627 .) . . . . [¶] We have no doubt that kidnapping for ransom, extortion or re

2022In support he cites People v. Hansen (1994) 9 Cal.4th 300, 309-310 , which held the willful discharge of a firearm at an inhabited dwelling is an inherently dangerous felony for purposes of the second degree felony-murder rule, and this court’s decision in People v. Cruz (1995) 38 Cal.App.4th 427, 434 , which held the defendant was properly sentenced for both an aggravated assault and discharging a firearm at an occupied building based on having fired four shots at a security officer who was standing in front of an occupied building together with “‘children and other people.’” We explained the

2019Indefinite Standard For a felony to be inherently dangerous to human life, our law requires that the abstract version of the offense involved " 'a high probability that death will result.' " ( Chun , supra , 45 Cal.4th at p. 1207 , 91 Cal.Rptr.3d 106 , 203 P.3d 425 [quoting People v. Hansen (1994) 9 Cal.4th 300 , 309, 36 Cal.Rptr.2d 609 , 885 P.2d 1022 , overruled on another ground in Chun , supra , at p. 1199, 91 Cal.Rptr.3d 106 , 203 P.3d 425 ]; *966 People v. Patterson (1989) 49 Cal.3d 615 , 627, 262 Cal.Rptr. 195 , 778 P.2d 549 ( Patterson ) [establishing " 'high probability' " standard be

2023(Chun, supra, 45 Cal.4th at p. 1182 .) This rule curtails the malice inquiry, obviating the need for the jury to “further examin[e] the defendant’s mental state.” (Ibid.; see People v. Patterson (1989) 49 Cal.3d 615, 626 [“The felony-murder rule generally acts as a substitute for the mental state ordinarily required for the offense of murder”]; People v. Satchell (1971) 6 Cal.3d 28, 43 [describing the rule as a “short-circuit”]; People v. Ireland (1969) 70 Cal.2d 522, 538 [“[A] second degree felony-murder instruction” relieves “ ‘the jury of the necessity of finding one of the elements of the

2019A. Abstract Determination As with the "residual clause" found unconstitutionally vague in Johnson , courts determine whether a felony is "inherently dangerous to human life" categorically for the felony, independent of the facts of any particular offense. " '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.' [Citation.] That is, we determine whether the felony 'by its very nature ... cannot b

2025Thus, certain underlying felonies ‘merge’ with the homicide and cannot be used for purposes of felony murder.” (People v. Chun (2009) 45 Cal.4th 1172, 1189 .) Under the merger doctrine, “when the underlying felony is assaultive, … that felony always ‘merges with the homicide’ and cannot support a felony-murder conviction.” (In re Ferrell (2023) 14 Cal.5th 593 , 601.) “The merger doctrine arose in the seminal case of [People v. Ireland (1969) 70 Cal.2d 522 ], and hence sometimes is called the ‘Ireland merger doctrine.’” (People v. Chun, supra, 45 Cal.4th at p. 1189 .) The Ireland opinion holds

2025(See People v. Chun (2009) 45 Cal.4th 1172, 1184 (Chun) [the second- degree felony-murder rule “‘imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to life’”].) Accordingly, the Legislature, in excepting first degree felony- murder convictions from the imputed malice prohibition, but not second degree felony-murder convictions, eliminated second degree felony murder as a valid theory of liability, regardless of whether the defendant is an accomplice or the actual killer.

2019Code, § 2800.2, subd. (b).) Our Supreme Court observed that violations assigned points under Vehicle Code section 12810 that "can be committed without endangering human life include driving an unregistered vehicle owned by the driver ..., driving with a suspended license ..., driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted ..., failing to come to a *942 complete stop at a stop sign ..., and making a right turn without signaling for 100 feet before turning." ( Howard , at pp. 1137-1138, 23 Cal.Rptr.3d 306 , 104 P.3d 107 [Vehicle Code se

2019Code, § 2800.2, subd. (b).) Our Supreme Court observed that violations assigned points under Vehicle Code section 12810 that "can be committed without endangering human life include driving an unregistered vehicle owned by the driver ..., driving with a suspended license ..., driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted ..., failing to come to a *942 complete stop at a stop sign ..., and making a right turn without signaling for 100 feet before turning." ( Howard , at pp. 1137-1138, 23 Cal.Rptr.3d 306 , 104 P.3d 107 [Vehicle Code se

2013(People v. Burroughs (1984) 35 Cal.3d 824, 829 [ 201 Cal.Rptr. 319 , 678 P.2d 894 ] (Burroughs); People v. Williams (1965) 63 Cal.2d 452, 457 [ 47 Cal.Rptr. 7 , 406 P.2d 647 ].) Second, we have limited the second degree felony-murder rule through the so-called merger doctrine articulated in People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ] (Ireland).

2013(People v. Burroughs (1984) 35 Cal.3d 824, 829 [ 201 Cal.Rptr. 319 , 678 P.2d 894 ] (Burroughs); People v. Williams (1965) 63 Cal.2d 452, 457 [ 47 Cal.Rptr. 7 , 406 P.2d 647 ].) Second, we have limited the second degree felony-murder rule through the so-called merger doctrine articulated in People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ] (Ireland).

2025Thus, certain underlying felonies ‘merge’ with the homicide and cannot be used for purposes of felony murder.” (People v. Chun (2009) 45 Cal.4th 1172, 1189 .) Under the merger doctrine, “when the underlying felony is assaultive, … that felony always ‘merges with the homicide’ and cannot support a felony-murder conviction.” (In re Ferrell (2023) 14 Cal.5th 593 , 601.) “The merger doctrine arose in the seminal case of [People v. Ireland (1969) 70 Cal.2d 522 ], and hence sometimes is called the ‘Ireland merger doctrine.’” (People v. Chun, supra, 45 Cal.4th at p. 1189 .) The Ireland opinion holds

2023(Chun, supra, 45 Cal.4th at p. 1182 .) This rule curtails the malice inquiry, obviating the need for the jury to “further examin[e] the defendant’s mental state.” (Ibid.; see People v. Patterson (1989) 49 Cal.3d 615, 626 [“The felony-murder rule generally acts as a substitute for the mental state ordinarily required for the offense of murder”]; People v. Satchell (1971) 6 Cal.3d 28, 43 [describing the rule as a “short-circuit”]; People v. Ireland (1969) 70 Cal.2d 522, 538 [“[A] second degree felony-murder instruction” relieves “ ‘the jury of the necessity of finding one of the elements of the

2009Prior to this court's decision in Ireland , this court had already restricted the felonies that could support a second degree felony-murder conviction to those "inherently dangerous to human life." ( People v. Ford (1964) 60 Cal.2d 772, 795 [ 36 Cal.Rptr. 620 , 388 P.2d 892 ].) 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 (1989) 49 Cal.3d 615, 626 [

2009Prior to this court's decision in Ireland , this court had already restricted the felonies that could support a second degree felony-murder conviction to those "inherently dangerous to human life." ( People v. Ford (1964) 60 Cal.2d 772, 795 [ 36 Cal.Rptr. 620 , 388 P.2d 892 ].) 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 (1989) 49 Cal.3d 615, 626 [

2019Second degree felony murder is 'an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189....' [Citation.]" ( People v. Chun (2009) 45 Cal.4th 1172 , 1182, 91 Cal.Rptr.3d 106 , 203 P.3d 425 ( Chun ).) In California, the second degree felony-murder rule "lies imbedded in our law." ( People v. Phillips (1966) 64 Cal.2d 574 , 582, 51 Cal.Rptr. 225 , 414 P.2d 353 , overruled on another ground by People v. Flood (1998) 18 Cal.4th 470 , 490, 76 Cal.Rptr.2d 180 , 957 P.2d 869 .) The Calif

2019Second degree felony murder is 'an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189....' [Citation.]" ( People v. Chun (2009) 45 Cal.4th 1172 , 1182, 91 Cal.Rptr.3d 106 , 203 P.3d 425 ( Chun ).) In California, the second degree felony-murder rule "lies imbedded in our law." ( People v. Phillips (1966) 64 Cal.2d 574 , 582, 51 Cal.Rptr. 225 , 414 P.2d 353 , overruled on another ground by People v. Flood (1998) 18 Cal.4th 470 , 490, 76 Cal.Rptr.2d 180 , 957 P.2d 869 .) The Calif

2025Thus, certain underlying felonies ‘merge’ with the homicide and cannot be used for purposes of felony murder.” (People v. Chun (2009) 45 Cal.4th 1172, 1189 .) Under the merger doctrine, “when the underlying felony is assaultive, … that felony always ‘merges with the homicide’ and cannot support a felony-murder conviction.” (In re Ferrell (2023) 14 Cal.5th 593 , 601.) “The merger doctrine arose in the seminal case of [People v. Ireland (1969) 70 Cal.2d 522 ], and hence sometimes is called the ‘Ireland merger doctrine.’” (People v. Chun, supra, 45 Cal.4th at p. 1189 .) The Ireland opinion holds

2021(Ibid.; see also Wilson, supra, 1 Cal.3d at p. 441 [“In Ireland, we rejected the bootstrap reasoning involved in taking an element of a homicide and using it as the underlying felony in a second degree felony-murder instruction”].) Several months later, we extended Ireland to reach certain first degree felony murders based on burglary.

2009The purpose we have most often identified "is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit." ( People v. Washington, supra, 62 Cal.2d at p. 781 .) Another purpose is to deter commission of the inherently dangerous felony itself. ( Robertson, supra, 34 Cal.4th at p. 171 ["the second degree felony-murder rule is intended to deter both carelessness in the commission of a crime and the commission of the inherently dangerous crime itself"]; Hansen, supra, 9 Cal.4th at pp. 310, 311, 314.) We first consider whether Hansen, supr

2004I respectfully suggest that it is the Legislature that has the resources and constitutional authority to determine and define what conduct is criminal and to set the punishment for such crimes." ( People v. Patterson, supra, 49 Cal.3d 615, 641-642 , 262 Cal.Rptr. 195 , 778 P.2d 549 (conc. & dis. opn. of Panelli, J.).) Justice Panelli's thoughts were echoed by Justice Mosk: "Equally important is `the need for legislative attention to the second degree felony-murder rule' ( People v. Patterson (1989) 49 Cal.3d 615, 641 [ 262 Cal.Rptr. 195 , 778 P.2d 549 ] ), . . . an artificial concept of strict

2009Under the collateral purpose rule or test, application of the second degree felony-murder rule is only proper where the underlying felony, although assaultive in nature, is nonetheless committed with a "`collateral and independent felonious design.'" ( Mattison, supra, 4 Cal.3d at p. 185 ; see Taylor, supra, 11 Cal.App.3d at p. 63 .) I signed the majority opinion in Robertson as well, but I have since come to appreciate that the collateral purpose rule on which it relied is unduly deferential to Ireland 's flawed merger doctrine.

2009We 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." ( Id. at p. 539.) [6] We next confronted the merger doctrine in a second degree felony-murder case in Mattison, supra, 4 Cal.3d 177 .

2021(Chun, at p. 1181.) Implied malice murder occurs “when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188, subd. (a)(2).) The second degree felony-murder rule has arisen to supply the implied malice element based on proof of “ ‘an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189. . . .’ ” (Chun, at p. 1182, quoting People v. Robertson (2004) 34 Cal.4th 156, 164 .) The Chun court limited the types of felonies that can support second degree f

2015To that extent, defendant’s new constitutional arguments are not forfeited on appeal. [Citation.] In the latter case, no separate constitutional discussion is required or provided where rejection of a claim that the trial court erred on the issue presented to that court necessarily leads to rejection of any constitutional theory or ‘gloss’ raised for the first time here.” (People v. Contreras (2013) 58 Cal.4th 123, 139, fn. 17 [ 165 Cal.Rptr.3d 204 , 314 P.3d 450 ].) 13 We question whether a second degree felony-murder instruction would have been appropriate here. “[The] use of the second degr

2023It 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.’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun).) Implied malice has 2 “[E]ffective January 1, 2019, the second degree felony-murder rule in California [was] eliminated.” (In re White (2019) 34 Cal.App.5th 933, 937, fn. 2 .) 3 Undesignated statutory references are to the Penal Code. 2 been interpreted “as having ‘both a

2023We need not address the alternative felony-murder theory because it would not affect her convictions even if, as at least one case has stated in dicta, “the second degree felony-murder rule in California is eliminated.” (In re White (2019) 34 Cal.App.5th 933, 937, fn. 2 .) The trial court analyzed the matter under the current law that applies to a first degree felony murder conviction under section 189, subdivision (e)(1).

2009(People v. Dillon (1983) 34 Cal.3d 441, 472 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ].) Thus, we cannot abrogate the first degree felony-murder rule because it “is a creature of statute. . . . [T]his court does not sit as a super-legislature with the power to judicially abrogate a statute merely because it is unwise or outdated. [Citations.]” (Id. at p. 463.) We do, however, possess the authority to abrogate the second degree felony-murder doctrine because “ ‘the second degree felony-murder rule remains, as it has been since 1872, a judge-made doctrine without any express basis in the Penal Code.’

2009(People v. Dillon (1983) 34 Cal.3d 441, 472 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ].) Thus, we cannot abrogate the first degree felony-murder rule because it “is a creature of statute. . . . [T]his court does not sit as a super-legislature with the power to judicially abrogate a statute merely because it is unwise or outdated. [Citations.]” (Id. at p. 463.) We do, however, possess the authority to abrogate the second degree felony-murder doctrine because “ ‘the second degree felony-murder rule remains, as it has been since 1872, a judge-made doctrine without any express basis in the Penal Code.’

1996(See People v. Mason, supra, 52 Cal.3d at p. 955.) But what the Lopez holding does mean, in the context of section 190.3, factor (b), is that we must review the factual setting of each particular escape to determine whether it involved actual or threatened violence and not presume that the escape was violent because of the possibility of violence in reapprehension. [3] All subsequent statutory references are to the Penal Code unless otherwise indicated. [2] In People v. Lopez (1971) 6 Cal.3d 45 [ 98 Cal. Rptr. 44 , 489 P.2d 1372 ], we declined to find the crime of escape to be "inherently dang

1996(See People v. Mason, supra, 52 Cal.3d at p. 955.) But what the Lopez holding does mean, in the context of section 190.3, factor (b), is that we must review the factual setting of each particular escape to determine whether it involved actual or threatened violence and not presume that the escape was violent because of the possibility of violence in reapprehension. [3] All subsequent statutory references are to the Penal Code unless otherwise indicated. [2] In People v. Lopez (1971) 6 Cal.3d 45 [ 98 Cal. Rptr. 44 , 489 P.2d 1372 ], we declined to find the crime of escape to be "inherently dang

2019Code, § 2800.2, subd. (b).) Our Supreme Court observed that violations assigned points under Vehicle Code section 12810 that "can be committed without endangering human life include driving an unregistered vehicle owned by the driver ..., driving with a suspended license ..., driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted ..., failing to come to a *942 complete stop at a stop sign ..., and making a right turn without signaling for 100 feet before turning." ( Howard , at pp. 1137-1138, 23 Cal.Rptr.3d 306 , 104 P.3d 107 [Vehicle Code se

2019Code, § 2800.2, subd. (b).) Our Supreme Court observed that violations assigned points under Vehicle Code section 12810 that "can be committed without endangering human life include driving an unregistered vehicle owned by the driver ..., driving with a suspended license ..., driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted ..., failing to come to a *942 complete stop at a stop sign ..., and making a right turn without signaling for 100 feet before turning." ( Howard , at pp. 1137-1138, 23 Cal.Rptr.3d 306 , 104 P.3d 107 [Vehicle Code se

2019We reasoned that, “Whether a felony is inherently dangerous for purposes of the second degree felony- murder rule is a question of law, or, at a minimum, a mixed question of law and fact, which we review de novo.” (James, supra, 62 Cal.App.4th at p. 259 , citing People v. Taylor (1992) 6 Cal.App.4th 1084, 1090-1094 (Taylor).) In that light, we also considered what evidence we could look to in determining inherent dangerousness.

2019We reasoned that, "Whether a felony is inherently dangerous for purposes of the second degree felony-murder rule is a question of law, or, at a minimum, a mixed question of law and fact, which we review de novo." ( James , supra , 62 Cal.App.4th at p. 259, 74 Cal.Rptr.2d 7 , citing People v. Taylor (1992) 6 Cal.App.4th 1084 , 1090-1094, 8 Cal.Rptr.2d 439 ( Taylor ).) In that light, we also considered what evidence we could look to in determining inherent dangerousness. ( Taylor , at pp. 1090-1094, 8 Cal.Rptr.2d 439 .) Our review of second degree felony-murder cases found that many cases made t

2019Code, § 2800.2, subd. (b).) Our Supreme Court observed that violations assigned points under Vehicle Code section 12810 that "can be committed without endangering human life include driving an unregistered vehicle owned by the driver ..., driving with a suspended license ..., driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted ..., failing to come to a *942 complete stop at a stop sign ..., and making a right turn without signaling for 100 feet before turning." ( Howard , at pp. 1137-1138, 23 Cal.Rptr.3d 306 , 104 P.3d 107 [Vehicle Code se

2019Code, § 2800.2, subd. (b).) Our Supreme Court observed that violations assigned points under Vehicle Code section 12810 that "can be committed without endangering human life include driving an unregistered vehicle owned by the driver ..., driving with a suspended license ..., driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted ..., failing to come to a *942 complete stop at a stop sign ..., and making a right turn without signaling for 100 feet before turning." ( Howard , at pp. 1137-1138, 23 Cal.Rptr.3d 306 , 104 P.3d 107 [Vehicle Code se

2019We reasoned that, "Whether a felony is inherently dangerous for purposes of the second degree felony-murder rule is a question of law, or, at a minimum, a mixed question of law and fact, which we review de novo." ( James , supra , 62 Cal.App.4th at p. 259, 74 Cal.Rptr.2d 7 , citing People v. Taylor (1992) 6 Cal.App.4th 1084 , 1090-1094, 8 Cal.Rptr.2d 439 ( Taylor ).) In that light, we also considered what evidence we could look to in determining inherent dangerousness. ( Taylor , at pp. 1090-1094, 8 Cal.Rptr.2d 439 .) Our review of second degree felony-murder cases found that many cases made t

2019We reasoned that, "Whether a felony is inherently dangerous for purposes of the second degree felony-murder rule is a question of law, or, at a minimum, a mixed question of law and fact, which we review de novo." ( James , supra , 62 Cal.App.4th at p. 259, 74 Cal.Rptr.2d 7 , citing People v. Taylor (1992) 6 Cal.App.4th 1084 , 1090-1094, 8 Cal.Rptr.2d 439 ( Taylor ).) In that light, we also considered what evidence we could look to in determining inherent dangerousness. ( Taylor , at pp. 1090-1094, 8 Cal.Rptr.2d 439 .) Our review of second degree felony-murder cases found that many cases made t

1994Pursuant to the so-called "merger" doctrine, the second degree felony-murder rule is not applicable when, on the evidence adduced at trial, the underlying felony was an "integral part" of, and "included in fact" within, the resulting homicide. ( People v. Ireland (1969) 70 Cal.2d 522, 539 [ 75 Cal. Rptr. 188 , 450 P.2d 580 , 40 A.L.R.3d 1323 ], italics in original.) [3] A felony may be so characterized when "there was a single course of conduct with a single purpose," viz., to commit "the very assault which resulted in death...." ( People v. Burton (1971) 6 Cal.3d 375, 387 [ 99 Cal. Rptr. 1 ,

1994Pursuant to the so-called "merger" doctrine, the second degree felony-murder rule is not applicable when, on the evidence adduced at trial, the underlying felony was an "integral part" of, and "included in fact" within, the resulting homicide. ( People v. Ireland (1969) 70 Cal.2d 522, 539 [ 75 Cal. Rptr. 188 , 450 P.2d 580 , 40 A.L.R.3d 1323 ], italics in original.) [3] A felony may be so characterized when "there was a single course of conduct with a single purpose," viz., to commit "the very assault which resulted in death...." ( People v. Burton (1971) 6 Cal.3d 375, 387 [ 99 Cal. Rptr. 1 ,

2005And, 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, 262 Cal.Rptr. 195 , 778 P.2d 549 .) Therefore, we have repeatedly stressed that the rule "`deserves no extension beyond its required application.'" ( Id. at p. 622, 262 Cal.Rptr. 195 , 778 P.2d 549 ; 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

2005And, 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, 262 Cal.Rptr. 195 , 778 P.2d 549 .) Therefore, we have repeatedly stressed that the rule "`deserves no extension beyond its required application.'" ( Id. at p. 622, 262 Cal.Rptr. 195 , 778 P.2d 549 ; 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

2009Under the collateral purpose rule or test, application of the second degree felony-murder rule is only proper where the underlying felony, although assaultive in nature, is nonetheless committed with a "`collateral and independent felonious design.'" ( Mattison, supra, 4 Cal.3d at p. 185 ; see Taylor, supra, 11 Cal.App.3d at p. 63 .) I signed the majority opinion in Robertson as well, but I have since come to appreciate that the collateral purpose rule on which it relied is unduly deferential to Ireland 's flawed merger doctrine.

2009Under the collateral purpose rule or test, application of the second degree felony-murder rule is proper only where the underlying felony, although assaultive in nature, is nonetheless committed with a “ ‘collateral and independent felonious design.’ ” (Mattison, supra, 4 Cal.3d at p. 185; see Taylor, supra, 11 Cal.App.3d at p. 63 .) I signed the majority opinion in Robertson as well, but I have since come to appreciate that the collateral purpose rule on which it relied is unduly deferential to Ireland’s flawed merger doctrine.

2021(See People v. Duchine, supra, 60 Cal.App.5th at p. 813 [“If a defendant asserts he lacked the requisite intent or did not act in a manner that would make him liable under still-valid murder theories, unless the record of conviction refutes those assertions as a matter of law, the defendant has met his prima facie burden,” and “the trial court should take him at his word and not engage in factfinding on the issues ‘without first issuing an order to show cause and allowing the parties to present evidence at a hearing.’”]; see also In re White (2019) 34 Cal.App.5th 933, 937, fn. 2 [under Senate

2021While Hernandez may be right about second degree felony murder (see In re White (2019) 34 Cal.App.5th 933, 937, fn. 2 [under Senate Bill No. 1437 “the second degree felony-murder rule in California is eliminated”]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1142, fn. 3 [Senate Bill No. 1437 “brings into question the ongoing viability of second degree felony murder in California”]), he is wrong about section 1170.95 and the law of the case doctrine.7 As this court explained in Rodriguez, an 7 “‘The law of the case doctrine states that when, in deciding an appeal, an appellate court “states

2018We 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." ( Id ., at p. 539, 75 Cal.Rptr. 188 , 450 P.2d 580 [first italics added, second italics in original, footnote omitted].) In two subsequent decisions, we extended this doctrine to preclude convictions for first degree felony murder premised on a killing during the course of a burglary when the intended felony underl

2018We 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." ( Id ., at p. 539, 75 Cal.Rptr. 188 , 450 P.2d 580 [first italics added, second italics in original, footnote omitted].) In two subsequent decisions, we extended this doctrine to preclude convictions for first degree felony murder premised on a killing during the course of a burglary when the intended felony underl