MOSK, J., Concurring and Dissenting. I concur in the judgment to the extent that it affirms the judgment of the Court of Appeal affirming defendant’s conviction of discharging a firearm at an inhabited dwelling house in violation of Penal Code section 246. This conviction was not affected by reversible error.
By contrast, I dissent from the judgment to the extent that it affirms the judgment of the Court of Appeal affirming defendant’s conviction of murder in the second degree under Penal Code sections 187, 188, and 189. This conviction was affected by reversible error when the superior court instructed the jury on second degree felony murder based on discharge of a firearm at an inhabited dwelling house.
I also dissent from the judgment to the extent that it reverses the judgment of the Court of Appeal setting aside an enhancement of defendant’s sentence for personal use of a firearm in the commission of murder in the second degree, within the meaning of Penal Code section 12022.5. This sentence [319]enhancement must be set aside as without legal predicate because defendant’s second degree murder conviction, on which it depends, must itself be set aside.
I
Murder is defined by statute as “the unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).) “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears; or when the circumstances attending the killing show an abandoned and malignant heart.” (Id., § 188.)
Murder is of the first degree, pursuant to statute, when it consists of a murder, i.e., an unlawful killing with malice aforethought, that “is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing . . . .” (Pen. Code, § 189.)
Murder is also of the first degree, pursuant to statute, when it simply comprises an unlawful killing, even without malice aforethought, that “is committed in the perpetration of, or attempt to perpetrate," certain enumerated felonies. (Pen. Code, § 189; see generally, People v. Dillon (1983) 34 Cal.3d 441, 462-472 [194 Cal.Rptr. 390, 668 P.2d 697] (plur. opn. of Mosk, J.); accord, id. at p. 490 (cone. opn. of Kaus, J.).)
Murder is of the second degree, pursuant to statute, when it consists of any murder that is not of the first degree. (Pen. Code, § 189.)
Murder is also of the second degree, by judicial decision, when it simply comprises an unlawful killing, even without malice aforethought, that directly results from an unenumerated felony that is inherently dangerous to human life. (E.g., People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892].) In determining whether a felony is inherently dangerous to human life, “we look to the elements of the felony in the abstract, not the particular ‘facts’ of the case." (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5 [47 Cal.Rptr. 7, 406 P.2d 647].) So viewed, a felony is inherently dangerous to human life if, and only if, it carries “ ‘a high probability’ that death will result.” (People v. Patterson (1989) 49 Cal.3d 615, 627 [262 Cal.Rptr. 195, 778 P.2d 549] (lead opn. of Kennard, J.); accord, id. at p. 640 (cone. & dis. opn. of Mosk, J.); id. at p. 641 (cone. & dis. opn. of Panelli, J.).)
[320]At issue is the second degree felony-murder rule. This doctrine arises not from any statute enacted by the Legislature but rather from the common law made by the courts. “[T]he second degree felony-murder rule remains, as it has been since 1872, a judge-made doctrine without any express”—or implied—“basis in the Penal Code . . . .” (People v. Dillon, supra, 34 Cal.3d at p. 472, fn. 19 (plur. opn. of Mosk, J.); accord, id. at p. 490 (cone, opn. of Kaus, J.) [semble]; People v. Burroughs (1984) 35 Cal.3d 824, 829, fn. 3 [201 Cal.Rptr. 319, 678 P.2d 894].)1 Contrary to the majority’s assertion (maj. opn., ante, at p. 308), the rule does not “impute” the element of malice aforethought. Rather, it omits that element altogether. (See People v. Patterson, supra, 49 Cal.3d at p. 626 (lead opn. of Kennard, J.) [speaking of the second degree felony-murder rule as a “substitute” for malice aforethought]; see also People v. Dillon, supra, 34 Cal.3d at pp. 472-476 (plur. opn. of Mosk, J.) [expressing the same view as to the first degree felony-murder rule]; accord, id. at p. 490 (cone. opn. of Kaus, J.).)
The purpose of the second degree felony-murder rule is simply “to deter [persons] engaged in felonies from killing negligently or accidentally . . . .” (People v. Satchell (1971) 6 Cal.3d 28, 34 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383]; accord, People v. Smith (1984) 35 Cal.3d 798, 807 [201 Cal.Rptr. 311, 678 P.2d 886].)2 Contrary to the majority’s implication at points (maj. opn., ante, at pp. 310, 314), the objective is not to deter such persons from committing the underlying felonies themselves (People v. Smith, supra, 35 Cal.3d at p. 807).
Pursuant 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, 491 P.2d 793] [involving the first degree felony-murder rule]; [321]accord, People v. Smith, supra, 35 Cal.3d at pp. 805-806 [involving the second degree felony-murder rule].) It has been held that assault is simply a willful act “likely to result in . . . physical force” against another. (People v. Colantuono (1994) 7 Cal.4th 206, 218 [26 Cal.Rptr.2d 908, 865 P.2d 704].)
A felony, however, cannot be so characterized when “there [was] an independent felonious purpose,” such as to steal. (People v. Burton, supra, 6 Cal.3d at p. 387, italics omitted [involving the first degree felony-murder rule]; accord, People v. Smith, supra, 35 Cal.3d at pp. 805-806 [involving the second degree felony-murder rule]; see People v. Taylor (1970) 11 Cal.App.3d 57, 63 [89 Cal.Rptr. 697] (per Kaus, P. J.) [involving the second degree felony-murder rule: speaking of “ ‘collateral and independent felonious design’”]; People v. Mattison (1971) 4 Cal.3d 177, 185-186 [93 Cal.Rptr. 185, 481 P.2d 193] [involving the second degree felony-murder rule: quoting Taylor].)
At bottom, then, the “merger” doctrine is predicated on, and limited by, the following rationale. When a felony is undertaken with the purpose to engage in an assault, in the sense of a willful act “likely to result in . . . physical force” against another (People v. Colantuono, supra, 7 Cal.4th at p. 218), the second degree felony-murder rule cannot be invoked because its objective—to deter the perpetrator from killing negligently or accidentally—is not likely to be attained. (See, e.g., People v. Smith, supra, 35 Cal.3d at p. 807.) It “can hardly be much of a deterrent to a defendant who has decided” to so act. (People v. Taylor, supra, 11 Cal.App.3d at p. 63.) By contrast, when a felony is undertaken with a different purpose, the rule is allowed to operate because its objective can be reached. (Cf. People v. Burton, supra, 6 Cal.3d at pp. 387-388 [to such effect under the first degree felony-murder rule].)
II
At trial, the superior court instructed the jury on the crime of murder. As pertinent here, it stated:
“Every person who unlawfully kills a human being . . . during the commission or attempted commission of a felony inherently dangerous to human life is guilty of the crime of murder ....
“In order to prove such crime, each of the following elements must be proved: 1. A human being was killed, 2. The killing was unlawful, and 3. The killing . . . occurred during the commission or attempted commission of a felony inherently dangerous to human life. Shooting at an inhabited [322]dwelling is a felony inherently dangerous to human life.” (Paragraphing omitted.)
“The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of shooting at an inhabited dwelling is murder of the second degree . . . .”
After six days of deliberations—almost as much time as was devoted to evidence, arguments, and instructions—the jury returned a verdict finding defendant guilty of murder in the second degree.4
III
By instructing the jury on second degree felony murder based on discharge of a firearm at an inhabited dwelling house, the superior court erred.
The applicability of the second degree felony-murder rule, under the governing law, depends on an affirmative answer to this threshold question: is discharge of a firearm at an inhabited dwelling house, considered in the abstract, a felony inherently dangerous to human life? The answer, however, is negative. By its very terms, Penal Code section 246 declares that, “[a]s used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.” (Italics added.) Further, as noted above, “inherently dangerous to human life” has been defined to mean carrying “ ‘a high probability’ that death will result.” (People v. Patterson, supra, 49 Cal.3d at p. 627 (lead opn. of Kennard, J.); accord, id. at p. 640 (cone. & dis. opn. of Mosk, J.); id. at p. 641 (cone. & dis. opn. of Panelli, J.).) Logic dictates that discharge of a firearm at an inhabited dwelling house cannot carry “ ‘a high probability’ that death will result” when Penal Code section 246 expressly does not require the presence of any occupant. Experience provides confirmation: to judge from reported appellate decisions, the prohibited conduct has resulted in death only in rare instances. Although such conduct has been called “extremely dangerous” (In re Lynch (1972) 8 Cal.3d 410, 431 [105 Cal.Rptr. 217, 503 P.2d 921]), it cannot be said to carry “ ‘a [323]high probability’ that death will result.” Surely, if the dwelling is not occupied at the time of the shooting, the “probability” of death is not “high”—it is zero.
Moreover, even if discharge of a firearm at an inhabited dwelling house, considered in the abstract, were in fact a felony inherently dangerous to human life, the applicability of the second degree felony-murder rule would depend on a negative answer to this further question under the “merger” doctrine: On the evidence adduced at trial, was defendant’s discharge of a firearm at the inhabited dwelling house in question an “integral part” of, and “included in fact” within, the resulting homicide? The answer, however, is affirmative. Such was the case in People v. Wesley (1970) 10 Cal.App.3d 902, 905-908 [89 Cal.Rptr. 377], a decision we impliedly approved in People v. Smith, supra, 35 Cal.3d at page 805. Such is the case here. The record reveals that defendant was engaged in “a single course of conduct with a single purpose,” viz., to commit “the very assault which resulted in death . . . .” (People v. Burton, supra, 6 Cal.3d at p. 387.) Whatever his precise motivation, he unquestionably decided to, and actually did, undertake an ultimately fatal assault, in the sense of a willful act “likely to result in . . . physical force” against another. (People v. Colantuono, supra, 7 Cal.4th at p. 218.) The record also reveals that he certainly did not exhibit any “independent felonious purpose.” (People v. Burton, supra, 6 Cal.3d at p. 387, italics omitted; accord, People v. Smith, supra, 35 Cal.3d at p. 805.)
It follows from the foregoing that the superior court erred by instructing on second degree felony murder based on discharge of a firearm at an inhabited dwelling house.
The majority are to the contrary. Their analysis, however, proves inadequate.
To the threshold question, “Is discharge of a firearm at an inhabited dwelling house, considered in the abstract, a felony inherently dangerous to human life?,” the majority answer, “Yes.” They are wrong.
In large part, the majority rely on the “reasoning” and “language” (maj. opn., ante, at p. 310) of People v. Satchell, supra, 6 Cal.3d 28. There, we stated in dictum that a “ready example” (id. at p. 43, fii. 22) of a felony “in which danger to human life is inherent” (id. at p. 43) was discharge of a firearm at an inhabited dwelling house.
The “language” of the Satchell dictum provides little support. At the time Satchell was decided more than 20 years ago, Penal Code section 246 [324]delineated a felony that came closer to being inherently dangerous to human life than it does today. The provision did not yet declare that “ ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not" (Pen. Code, § 246, as amended by Stats. 1977, ch. 690, § 1, p. 2220, italics added.)5 Furthermore, at the time Satchell was decided, the definition of “inherently dangerous to human life” was less demanding than it is now, being satisfied, in words later used in People v. Burroughs, supra, 35 Cal.3d at page 833, by nothing more than a “substantial risk that someone will be killed . . . .’’It had not yet become more stringent, requiring “ ‘a high probability’ that death will result.” (People v. Patterson, supra, 49 Cal.3d at p. 627 (lead opn. of Kennard, J.); accord, id. at p. 640 (cone. & dis. opn. of Mosk, J.); id. at p. 641 (conc. & dis. opn. of Panelli, J.).)
The “reasoning” of the Satchell dictum provides even less support. It is predicated on the view that the purpose of the second degree felony-murder rule is simply to deter persons engaged in felonies from committing those offenses. (People v. Satchell, supra, 6 Cal.3d at p. 43 [stating that “it is the deterrence of such acts by felons which the rule is designed to accomplish”].) That view is simply erroneous. (People v. Smith, supra, 35 Cal.3d at p. 807 [holding that the objective “is not to deter the underlying felony”].) The purpose of the rule is, rather, to deter persons engaged in felonies from killing negligently or accidentally. (Ibid.) That Satchell avoids this error elsewhere in its discussion (see People v. Satchell, supra, 6 Cal.3d at p. 34 [holding that the objective is “to deter those engaged in felonies from killing negligently or accidentally”]) does not remove the taint from the words in question.
In addition to relying on the “reasoning” and “language” of the Satchell dictum, the majority seek to fabricate a ground of their own. They do not meet with success.
The majority first assert: “The discharge of a firearm at an inhabited dwelling house—by definition, a dwelling ‘currently being used for dwelling purposes, whether occupied or not’ [citation]—is a felony whose commission inherently involves a danger to human life. An inhabited dwelling house is one in which persons reside [citation] and where occupants ‘are generally in or around the premises.’ [Citation, 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 [325]of this felony even if, at the time of the shooting, the residents of the inhabited dwelling happen to be absent [citation], 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 . . . (Maj. opn., ante, at p. 310.)
The statement that “there always will exist a significant likelihood that an occupant may be present” (italics added) is supportable.
But the implication that “there will always exist a significant likelihood that an occupant may be killed’ is not. At any given time, all occupants may be absent from the dwelling. School, work, shopping, leisure pursuits, and other activities may demand attendance outside, often for the greater part of the day. Even if an occupant is present, he may be in a part of the dwelling away from the shooting. The resident is necessarily smaller than the residence. Usually, thousands of times so. For example, an average adult man may stand in 1 square foot of floor space and take up 6 cubic feet of a room; by contrast, even a modest house may cover as many as 1,500 square feet and, with 8-foot ceilings, fill as much as 12,000 cubic feet. But even if an occupant happens to be near the shooting, the dwelling itself provides significant protection. To be sure, the exterior is commonly windowed. In most houses, however, structural soundness requires, and building codes demand, that load-bearing walls of wood or masonry backed by studs and sheetrock predominantly compose the shell. Although such walls may be penetrated by certain types of ammunition with sufficient velocity to injure a person within, they stop or at least slow all the rest. When they do so, they constitute a fortification.
Moreover, even if “the offense . . . pose[d] a great risk ... of death,” it would not matter. The prohibited conduct might be deemed “inherently dangerous to human life” under the former, less demanding definition, which was satisfied by nothing more than a “substantial risk that someone will be killed. . . (People v. Burroughs, supra, 35 Cal.3d at p. 833.) But it would not qualify under the present, more stringent definition, which requires “ ‘a high probability’ that death will result.” (People v. Patterson, supra, 49 Cal.3d at p. 627 (lead opn. of Kennard, J.); accord, id. at p. 640 (conc. & dis. opn. of Mosk, J.); id. at p. 641 (conc. & dis. opn. of Panelli, J.).) The implication that a “great risk ... of death” is a “ ‘high probability’ of death” is dead wrong. (See id. at pp. 628-629 (conc. & dis. opn. of Lucas, C.J.).)
The majority then assert: “[Application of the second degree felony-murder rule to a homicide resulting from a violation of [Penal Code] section [326246] 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.” (Maj. opn., ante, at p. 310.) Are we then to conclude that the rule would lead a person who is minded to discharge a firearm at an inhabited dwelling house—“maliciously and willfully,” as Penal Code section 246 requires—to blaze away with due caution and circumspection? To ask the question is to provide its answer. As stated above, the rule “can hardly be much of a deterrent to a defendant who has decided” to undertake an assault (.People v. Taylor, supra, 11 Cal.App.3d at p. 63), in the sense of a willful act “likely to result in . . . physical force” against another (People v. Colantuono, supra, 7 Cal.4th at p. 218). That Penal Code section 246 does not bear the label of “assault” is not dispositive. It embraces its substance. Because it does, it appears in the Penal Code in the chapter entitled “Assault and Battery.” (Pen. Code, pt. 1, tit. 8, ch. 9.)
Next, to the question under the “merger” doctrine, “On the evidence adduced at trial, was defendant’s discharge of a firearm at the inhabited dwelling house in question an ‘integral part’ of, and ‘included in fact’ within, the resulting homicide?,” the majority answer, “No.” Again, they are wrong.
In part, the majority would avoid the “merger” doctrine by limiting it to “circumstances where the only underlying . . . felony committed by the defendant was assault.” (Maj. opn., ante, at p. 311, italics in original.) Even if this limitation is sound—and apparently it is not (see People v. Sears (1970) 2 Cal.3d 180, 185-189 [84 Cal.Rptr. 711, 465 P.2d 847]; People v. Wilson, supra, 1 Cal.3d at pp. 439-442)—it would not yield the result desired. That is because the only underlying felony committed by defendant here was in fact assault, in the sense of a willful act “likely to result in . . . physical force” against another. (People v. Colantuono, supra, 7 Cal.4th at p. 218.)
Additionally, the majority would avoid the “merger” doctrine by applying it purportedly in accordance with People v. Mattison, supra, 4 Cal.3d 177, and People v. Taylor, supra, 11 Cal.App.3d 57. They recognize that Mattison and Taylor each held the doctrine unavailable because the evidence adduced at trial therein revealed an “independent felonious purpose.” (People v. Burton, supra, 6 Cal.3d at p. 387, italics omitted; accord, People v. Smith, supra, 35 Cal.3d at p. 805; see People v. Taylor, supra, 11 Cal.App.3d at p. 63 [speaking of “ ‘collateral and independent felonious design’ ”]; People v. Mattison, supra, 4 Cal.3d at p. 185 [quoting Taylor].) But they seem not to recognize that, as explained, the evidence adduced at trial in this case reveals no such “independent felonious purpose,” but only an intent to commit an assault, in the sense indicated above. On second glance, perhaps they do [327]recognize the fact. Why else do they shrink back from fully embracing Mattison and Taylorl
Further, the majority attempt to avoid the “merger” doctrine by invoking Aguirre v. State (Tex.Crim.App. 1987) 732 S.W.2d 320 (in bank). Aguirre is distinguishable. In that case, the felony underlying the resulting homicide was “criminal mischief,” a “property offense,” which comprised an “attempt] to blow open a door with a shotgun” (id. at p. 325); it was undertaken with the “independent felonious purpose”—in our phrase—to effect an unlawful entrance into a residence. In this case, by contrast, the felony underlying the resulting homicide was discharge of a firearm at an inhabited dwelling house, a crime against the person (Pen. Code, pt. 1, tit. 8); it was undertaken simply to effect the ultimately fatal assault, in the sense indicated above.
Unable to avoid the “merger” doctrine, the majority come close to rendering it void. They reason that the doctrine is not available in this case because “[m]ost homicides do not result” from discharge of a firearm at an inhabited dwelling house. (Maj. opn., ante, at p. 315.) It follows that the doctrine would not be available in any case because most homicides do not result from any one felony. Such an outcome is untenable.6
IV
The superior court’s error in instructing the jury on second degree felony murder based on discharge of a firearm at an inhabited dwelling house requires reversal of defendant’s conviction of murder in the second degree.
When a legally erroneous theory of conviction is presented to the jury, reversal is required unless, on the record made at trial, the reviewing court can determine that the conviction actually, if not solely, rests on a legally [328]proper theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 [17 Cal.Rptr.2d 365, 365 P.2d 45]; see People v. Smith, supra, 35 Cal.3d at p. 808 [concluding that reversal of a second degree murder conviction is required unless the People can “show that no juror relied on the erroneous instruction” on second degree felony murder “as the sole basis for finding [the] defendant guilty”].)
In this case, a legally erroneous theory of conviction of murder in the second degree was indeed presented to the jury. That theory was second degree felony murder. It was legally erroneous because, as explained above, the rule was not applicable here under the governing law.
Further, on the record made at trial, we cannot determine whether defendant’s conviction of murder in the second degree actually, if not solely, rests on a legally proper theory. Rather, the only determination that we can and indeed must make in this regard is that the conviction rests on the legally erroneous theory of second degree felony murder. The fact is established by the jury’s guilty verdicts on second degree murder and discharge of a firearm at an inhabited dwelling house—which, under the evidence adduced and the instructions given, necessarily add up to second degree felony murder. (Cf. People v. Berryman (1993) 6 Cal.4th 1048, 1086 [25 Cal.Rptr.2d 867, 864 P.2d 40] [arriving at a similar conclusion on a similar record].)7
Defendant’s conviction of murder in the second degree must therefore be reversed.8
V
For the reasons stated above, I would: (1) affirm the Court of Appeal’s judgment affirming defendant’s conviction of discharging a firearm at an [329]inhabited dwelling house; (2) reverse its judgment affirming defendant’s conviction of murder in the second degree; and (3) affirm its judgment setting aside the firearm-use sentence enhancement, which is dependent on the latter conviction.
People v. Landry (1989) 212 Cal.App.3d 1428, 1434-1437 [261 Cal.Rptr. 254], is to the contrary. It founders on the authority and reasoning of People v. Burroughs, supra, 35 Cal.3d 824, and People v. Dillon, supra, 34 Cal.3d 441.
This, of course, is the purpose of the felony-murder rule generally. (E.g., People v. Washington (1965) 62 Cal.2d 111, 781 [44 Cal.Rptr. 442, 402 P.2d 130].)
The “merger” doctrine operates as to the felony-murder rule generally. (See, e.g., People v. Wilson (1969) 1 Cal.3d 431, 439-442 [82 Cal.Rptr. 494, 462 P.2d 22] [applying to the first degree felony-murder rule the reasoning of People v. Ireland, supra, 70 Cal.2d at p. 539, which deals specifically with the second degree felony-murder rule].)
It was apparently the second degree felony-murder rule and not the facts of the case that caused the jury to have trouble reaching its verdict. Ironically, it was also the rule and not the facts that ultimately produced the determination of guilt. One juror subsequently stated: “It makes me sick and ashamed to have been part of a system that would convict someone like [defendant] of murder. Not everyone deserves a second chance but [he] does. The law is what dictated the verdict, not the jury.” Another juror added: “If it wasn’t for the scenario which said that the murder was a result of an intentional act of shooting into a dwelling which is a felony, then my vote would be for manslaughter. I do think that what [defendant] did was very serious but I would not rank him as a cold blooded killer.”
It should be noted that in People v. Chavira (1970) 3 Cal.App.3d 988, 992 [83 Cal.Rptr. 851]—which Satchell does not cite—the Court of Appeal had construed “inhabited” in Penal Code section 246 to mean that “a person resides therein even though . . . temporarily unoccupied.”
The instruction on second degree felony-murder based on discharge of a firearm at an inhabited dwelling house also amounts to error under the United States Constitution.
An instruction in a state criminal trial omitting an element of a crime is violative of the due process clause of the Fourteenth Amendment. (Rael v. Sullivan (10th Cir. 1990) 918 F.2d 874, 875; Cole v. Young (7th Cir. 1987) 817 F.2d 412, 423-426; cf. U.S. v. Gaudin (9th Cir. 1994) 28 F.3d 943, 944-952 (in bank) [holding to the effect that an instruction in a federal criminal trial omitting an element of a crime is violative of the due process clause of the Fifth Amendment].)
The instruction here given omitted an element of murder in the second degree, viz., malice aforethought. (See, e.g., People v. Henderson (1977) 19 Cal.3d 86, 96 [137 Cal.Rptr. 1, 560 P.2d 1180], citing cases.) It might be argued that, whereas the statutory crime of second degree murder includes malice aforethought as an element (see Pen. Code, §§ 187, subd. (a), 188, 189), the “common law crime” does not. In California, however, “there are no common law crimes.” (In re Brown (1973) 9 Cal.3d 612, 624 [108 Cal.Rptr. 465, 510 P.2d 1017]; see Pen. Code, § 6.)
See also footnote 4, ante.
Insofar as the instruction on second degree felony murder based on discharge of a firearm at an inhabited dwelling house amounts to error under the United States Constitution, it requires reversal of defendant’s conviction of murder in the second degree solely on that basis.
For error under the United States Constitution, the general rule is harmless-error analysis pursuant to Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065], with its “reasonable doubt” standard; the exception is automatic reversal. (E.g., Sullivan v. Louisiana (1993) _ U.S. _, _ [124 L.Ed.2d 182, 189, 113 S.Ct. 2078, 2081].)
The error here is automatically reversible. When, as in this case (see fn. 6, ante), an instruction omits an element of a crime, it “cannot be harmless.” (U.S. v. Gaudin, supra, 28 F.3d at p. 951.)
Even if it were not automatically reversible, the error here cannot be held harmless beyond a reasonable doubt. Such a conclusion could be reached if, and only if, the jury’s guilty verdict on murder in the second degree “was surely unattributable to the error.” (Sullivan v. Louisiana, supra,_U.S. at p__[124 L.Ed.2d at p. 189,113 S.Ct. at p. 2081].) As explained in the text, that condition is not, and cannot be, satisfied here.