People v. Patterson

778 P.2d 549, 49 Cal. 3d 615, 262 Cal. Rptr. 195, 1989 Cal. LEXIS 1604

• Court: California Supreme Court
• Decided: September 7, 1989
• Docket: S006538
• Status: Published

Opinions

Opinion

KENNARD, J.

The issue before us is whether the second degree felony-murder doctrine applies to a defendant who, in violation of Health and Safety Code section 11352, furnishes cocaine to a person who dies as a result of ingesting it. We reaffirm the rule that, in determining whether a felony is inherently dangerous to human life under the second degree felony-murder doctrine, we must consider “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].) While Health and Safety Code section 11352 includes drug offenses other than the crime of furnishing cocaine, which formed the basis for the prosecution’s theory of second degree felony murder here, we conclude that the inquiry into inherent dangerousness must focus on the felony of furnishing cocaine, and not on section 11352 as a whole. We further hold that—consistent with the established definition of the term “inherently dangerous to life” in the context of implied malice as an element of second degree murder—a felony is inherently dangerous to life when there is a high probability that its commission will result in death.

We reverse the decision of the Court of Appeal affirming the trial court’s ruling that, as a matter of law, the second degree felony-murder doctrine was inapplicable to this case. We direct the Court of Appeal to remand the matter to the trial court.

Factual and Procedural Background

According to the testimony at the preliminary hearing, victim Jennie Licerio and her friend Carmen Lopez had been using cocaine on a daily basis in the months preceding Licerio’s death. On the night of November 25, 1985, the two women were with defendant in his motel room. There, all three drank “wine coolers,” inhaled “lines” of cocaine, and smoked “coco puffs” (hand-rolled cigarettes containing a mixture of tobacco and cocaine). Defendant furnished the cocaine. When Licerio became ill, Lopez called an ambulance. Defendant stayed with the two women until the paramedics and the police arrived. The paramedics were unable to revive Licerio, who died of acute cocaine intoxication.

The People filed an information charging defendant with one count each of murder (Pen. Code, § 187), possession of cocaine (Health & Saf. Code, § 11350), and possession of cocaine for sale (Health & Saf. Code, § 11351). Defendant was also charged with three counts of violating Health and Safety Code section 11352, in that he “did willfully, unlawfully and feloniously transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit: cocaine.”

Defendant moved under Penal Code section 995 to set aside that portion of the information charging him with murder, contending the evidence presented at the preliminary hearing did not establish probable cause to believe he had committed murder. In opposing the motion, the People did not suggest the murder charge was based on a theory of implied malice. Instead, they relied solely on the second degree felony-murder doctrine. They argued that by furnishing cocaine defendant committed an inherently dangerous felony, thus justifying application of the rule. The trial court denied the motion. However, when the case was reassigned for trial, the court dismissed the murder charge under Penal Code section 1385.¹ In compliance with Penal Code section 1385’s requirement that “[t]he reasons for the dismissal must be set forth in an order entered upon the minutes,” the court gave this explanation in its minute order: “Court finds that violation of 11351 H & S and 11352 H & S are not inherently dangerous to human life and on the Courts [sic] own motion orders count 1 of the information dismissed in the interest of justice under section 1385 P.C.”²

Following the dismissal, defendant entered a negotiated plea of guilty to the three counts of violating Health and Safety Code section 11352. In his written plea form, defendant specifically admitted he had “furnished a controlled substance, to wit: cocaine, knowing it was cocaine.” The remaining charges were dismissed, and defendant was placed on probation for three years, with credit for the time he had already spent in custody. The People appealed the dismissal of the murder charge, (Pen. Code, § 1238, subd. (a)(8).)³

The Court of Appeal affirmed the dismissal of the murder count. Based on its review of the applicable decisions of this court, the Court of Appeal felt compelled to analyze Health and Safety Code section 11352 in its entirety (as opposed to only that portion of the statute actually violated in the present case) to determine whether defendant had committed an inherently dangerous felony. The court observed that section 11352 could be violated in various nonhazardous ways, such as transporting or offering to transport controlled substances.⁴ As the court said, “The latter acts are

obviously not inherently dangerous to human life.” While recognizing that the murder charge against defendant rested on his furnishing cocaine to the victim, the court concluded that, viewing the statute “in the abstract,” a violation of section 11352 could not be characterized as an inherently dangerous felony.

The Court of Appeal reached this conclusion reluctantly. The court noted that consideration of the entire statute, which included offenses unrelated to defendant’s conduct, had brought the second degree felony-murder rule “to the brink of logical absurdity.” The court suggested that “[i]f the rule is not abolished, it should be codified by the legislature with meaningful guidelines to effectuate its use.”

As we shall explain, the Court of Appeal has interpreted our previous decisions in this area too broadly. In determining whether defendant had committed an inherently dangerous felony, the court should have considered only the particular crime at issue, namely, furnishing cocaine, and not the entire group of offenses included in the statute but not involved here. Thus, it is the offense of furnishing cocaine, not the statute as a whole, which must be examined “in the abstract.”

Discussion

1. Second degree felony-murder doctrine

There is no precise statutory definition for the second degree felony-murder rule.⁵ In People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892], we defined the doctrine as follows: “A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder. [Citations.]” In determining whether the felony is inherently dangerous, “we look to the elements of the felony in the abstract, not the particular ‘facts’ of the case.” (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5; People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal.Rptr. 225, 414 P.2d 353]; People v. Henderson (1977) 19 Cal.3d 86, 93 [137 Cal.Rptr. 1, 560 P.2d 1180]; People v. Burroughs (1984) 35 Cal.3d 824, 829-830 [201 Cal.Rptr. 319, 678 P.2d 894].)

The Court of Appeal’s opinion in this case criticized the second degree felony-murder rule in its present form, suggesting the doctrine should either be completely eliminated or considerably “reformed.” In response, defendant and amici curiae on his behalf have urged us to abolish the rule. The People and their amici curiae, on the other hand, have asked that we “reform” the doctrine by looking solely to the actual conduct of a defendant, thereby dispensing with the requirement that the elements of the offense be viewed in the abstract. We decline both invitations for the reasons discussed below.

The second degree felony-murder doctrine has been a part of California’s criminal law for many decades. (See People v. Wright (1914) 167 Cal. 1, 5 [138 P. 349]; Pike, What Is Second Degree Murder in California (1936) 9 So.Cal.L.Rev. 112, 118-119.) In recent years, we have characterized the rule as “anachronistic” (People v. Burroughs, supra, 35 Cal.3d at p. 829) and “disfavored” (People v. Henderson, supra, 19 Cal.3d at p. 92), based on the view of many legal scholars that the doctrine incorporates an artificial concept of strict criminal liability that “erodes the relationship between criminal liability and moral culpability.” (People v. Washington (1965) 62 Cal.2d 111, 183 [44 Cal.Rptr. 442, 402 P.2d 130]; People v. Satchell (1971) 6 Cal.3d 28, 33 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383].) The Legislature, however, has taken no action to alter this judicially created rule, and has declined our more recent suggestion in People v. Dillon (1983) 34 Cal.3d 441, 472, footnote 19 [194 Cal.Rptr. 390, 668 P.2d 697], that it reconsider the rules on first and second degree felony murder and misdemeanor manslaughter. In this case, our limited purpose in granting the People’s petition for review was to determine the applicability of the second degree felony-murder doctrine to the crime of furnishing cocaine. We decline defendant’s invitation that we determine the continued vitality of the rule. (See People v. Burroughs, supra, 35 Cal.3d at p. 829, fn. 3.)

We also turn down the People’s invitation that we expand the second degree felony-murder doctrine by eliminating the requirement of People v. Williams, supra, 63 Cal.2d 452, that the elements of the offense be viewed “in the abstract,” and by adopting a new standard focusing instead on the actual conduct of a defendant in determining whether the felony is inherently dangerous.

In People v. Williams, supra, 63 Cal.2d 452, the defendants argued with their drug dealer and stabbed him to death, assertedly in self-defense. We reversed the convictions for second degree murder because of the trial court’s improper instruction to the jury that the defendants were guilty of second degree murder if the jury found the killing had occurred in the perpetration of the felony of conspiracy to possess Methedrine without a prescription. We explained that, in evaluating the inherent dangerousness of a particular felony, “we look to the elements of the felony in the abstract, not the particular ‘facts’ of the case.” (Id., at p. 458, fn. 5.) We concluded that under this analysis the conspiracy involved in Williams was not a felony inherently dangerous to human life. (Id., at p. 458.)

Sound reasons support the Williams rule. As we observed in People v. Burroughs, supra, 35 Cal.3d at page 830: “This form of [viewed-in-the-abstract] analysis is compelled because there is a killing in every case where the rule might potentially be applied. If in such circumstances a court were to examine the particular facts of the case prior to establishing whether the underlying felony is inherently dangerous, the court might well be led to conclude the rule applicable despite any unfairness which might redound to the defendant by so broad an application: the existence of the dead victim might appear to lead inexorably to the conclusion that the underlying felony is exceptionally hazardous.”

For the reasons set forth above, we are reluctant to significantly expand the scope of the second degree felony-murder rule, as the People have urged us to do. We have repeatedly said that the felony-murder rule “deserves no extension beyond its required application.” (People v. Phillips, supra, 64 Cal.2d at p. 582; People v. Dillon, supra, 34 Cal.3d at pp. 462-463; People v. Burroughs, supra, 35 Cal.3d at p. 829.) Both the People’s suggestion that we expand the second degree felony-murder doctrine and defendant’s suggestion that we abolish it are matters appropriately left to the Legislature.

2. Determining “inherent dangerousness” of the felony of furnishing cocaine

As discussed earlier, in determining whether defendant committed an inherently dangerous felony, we must consider the elements of the felony “in the abstract.” (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5.) Because Health and Safety Code section 11352 also proscribes conduct other than that involved here (furnishing cocaine), the issue still to be resolved is whether we must consider only the specific offense of furnishing cocaine or the entire scope of conduct prohibited by the statute.

The Court of Appeal examined Health and Safety Code section 11352 in its entirety. It felt compelled to do so because of a series of recent cases where we held that, to determine a felony’s inherent dangerousness, the statute as a whole had to be examined. (People v. Lopez (1971) 6 Cal.3d 45 [98 Cal.Rptr. 44, 489 P.2d 1372]; People v. Henderson, supra, 19 Cal.3d 86; People v. Burroughs, supra, 35 Cal.3d 824.) However, unlike the situation here, each of those cases involved a statute that proscribed an essentially single form of conduct.

In Lopez, supra, 6 Cal.3d 45, the defendant and another inmate engaged in what initially was a nonviolent escape, but which culminated in a fatal assault perpetrated by the other escaping inmate. We held the crime of escape (Pen. Code, § 4532) not to be an inherently dangerous felony for purposes of applying the second degree felony-murder rule. We rejected the People’s contention that because the statute’s penalty for a violent escape was greater than for a nonviolent escape it could be broken into two offenses: one violent, the other nonviolent. Although we recognized that the statute “comprehends a multitude of sins,” we concluded it “draws no relevant distinction between such [nonviolent] escapes and the more violent variety . . . .” (6 Cal.3d at pp. 51-52.) In stressing the statute’s unitary nature, we said: “The offense is escape. The circumstances of commission are relevant not to the offense committed but to the punishment" to be imposed therefor.” (Id., at p. 52, fn. 9, italics in original.)

In Henderson, supra, 19 Cal. 3d 86, the defendant was accused of murder based on a death that had occurred in the course of aggravated false imprisonment. (Pen. Code, § 236.) The crime was a felony because it had been “effected by violence, menace, fraud, or deceit.” (Pen. Code, § 237.)⁶ After analyzing the statutory scheme as a whole, we concluded: “While the elements of violence or menace by which false imprisonment is elevated to a felony may involve danger to human life, the felony offense viewed as a whole in the abstract is not inherently dangerous to human life.” (19 Cal.3d at p. 94.) In rejecting the People’s contention that, instead of examining the statute as a whole, we consider whether the felony of false imprisonment by violence or menace was inherently dangerous, we said: “The Legislature has not drawn any relevant distinctions between violence, menace, fraud, or deceit. These types of conduct are specified only as a basis for distinguishing between false imprisonment punishable as a misdemeanor and false imprisonment punishable as a felony.” (Id., at p. 95.)

Finally, in Burroughs, supra, 35 Cal. 3d 824, we held that a violation of Business and Professions Code section 2053, which prohibits the practice of medicine without a license “under circumstances or conditions which cause or create a risk of great bodily harm, serious physical or mental illness, or death,” was not a felony inherently dangerous to human life.⁷ We explained: “In this examination we are required to view the statutory definition of the offense as a whole, taking into account even nonhazardous ways of violating the provisions of the law which do not necessarily pose a threat to human life. [¶] The primary element of the offense in question here is the practice of medicine without a license. The statute defines such practice as ‘treating the sick or afflicted.’ One can certainly conceive of treatment of the sick or afflicted which has quite innocuous results—the affliction at stake could be a common cold, or a sprained finger, and the form of treatment an admonition to rest in bed and drink fluids or the application of ice to mild swelling. Thus, we do not find inherent dangerousness at this stage . . . .” (35 Cal.3d at p. 830.)

In both Henderson and Burroughs, supra, we observed that the offense in question had a “primary element.” In Henderson, the primary element was “the unlawful restraint of another’s liberty” (People v. Henderson, supra, 19 Cal.3d at p. 93), while in Burroughs it was “the practice of medicine without a license” (People v. Burroughs, supra, 35 Cal.3d at p. 830). Lopez, too, involved an offense with a primary element, namely, escape. (6 Cal.3d 45.) In contrast, Health and Safety Code section 11352, the statute at issue here, has no primary element. For instance, the elements of the crime of transporting a controlled substance bear no resemblance to those underlying the offense of administering such a substance; yet these two offenses are included in the same statute. (Compare People v. Cortez (1985) 166 Cal.App.3d 994, 998-999 [212 Cal.Rptr. 692] [transporting]; CALJIC No. 12.07 [administering].)

The fact that the Legislature has included a variety of offenses in Health and Safety Code section 11352 does not require that we treat them as a unitary entity. Rather, we must decide whether in “[r]eading and considering the statute as a whole in order to determine the true legislative intent ... we find [a] basis for severing” the various types of conduct it forbids. (People v. Henderson, supra, 19 Cal.3d at p. 95.) There are more than 100 different controlled substances that fall within the confines of Health and Safety Code section 11352. To create statutes separately proscribing the importation, sale, furnishing, administration, etc., of each of these drugs, would require the enactment of hundreds of individual statutes. It thus appears that for the sake of convenience the Legislature has included the various offenses in one statute.

The determination whether a defendant who furnishes cocaine commits an inherently dangerous felony should not turn on the dangerousness of other drugs included in the same statute, such as heroin and peyote; nor should it turn on the danger to life, if any, inherent in the transportation or administering of cocaine. Rather, each offense set forth in the statute should be examined separately to determine its inherent dangerousness.

For the reasons discussed above, we hold the Court of Appeal and the trial court erred in concluding that Health and Safety Code section 11352 should be analyzed in its entirety to determine whether, in furnishing cocaine, defendant committed an inherently dangerous felony. Defendant, however, argues that even the more narrow offense of furnishing cocaine is not an inherently dangerous felony and therefore the trial court acted correctly in dismissing the murder charge, despite its faulty analysis. In countering that argument, the People have asked us to take judicial notice of various medical articles and reports that assertedly demonstrate that the offense of furnishing cocaine is sufficiently dangerous to life to constitute an inherently dangerous felony.

The task of evaluating the evidence on this issue is most appropriately entrusted to the trial court, subject, of course, to appellate review. We therefore direct the Court of Appeal to remand the matter to the trial court for further proceedings in light of this opinion. This remand does not foreclose a finding by the trial court that the crime of furnishing cocaine is not a felony inherently dangerous to life, thus justifying a dismissal of the murder charge. If, however, the trial court concludes the offense of furnishing cocaine is inherently dangerous and therefore the murder charge should not be dismissed, defendant must be allowed to withdraw his guilty plea to the charges of violating Health and Safety Code section 11352, with credit for any interim time served. (See People v. Orin, supra, 13 Cal.3d at p. 942, fn. 7.)

3. Meaning of the term “inherently dangerous to human life”

For the guidance of the trial court on remand, we shall elaborate on the meaning of the term “inherently dangerous to life” for purposes of the second degree felony-murder doctrine.

The felony-murder rule generally acts as a substitute for the mental state ordinarily required for the offense of murder. We observed in People v. Satchell, supra, 6 Cal.3d at page 43: “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.” Ordinarily, when a defendant commits an unintentional killing, a murder conviction requires a showing that he acted with implied malice. (Pen. Code, § 188.) With the felony-murder rule, however, such malice need not be shown. (See People v. Dillon, supra, 34 Cal.3d 441, 475.)

Implied malice, for which the second degree felony-murder doctrine acts as a substitute,⁸ has both a physical and a mental component. The physical component is satisfied by the performance of “an act, the natural consequences of which are dangerous to life.” (People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279].) The mental component is the requirement that the defendant “knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.” {Ibid., internal quotation marks omitted.)

The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component. The justification therefor 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 because, by declaring the conduct to be felonious, society has warned him of the risk involved. The physical requirement, however, remains the same; by committing a felony inherently dangerous to life, the defendant has committed “an act, the natural consequences of which are dangerous to life” {Watson, supra, 30 Cal.3d at p. 300), thus satisfying the physical component of implied malice.

The definition of “inherently dangerous to life” in the context of the implied malice element of second degree murder is well established. An act is inherently dangerous to human life when there is “a high probability that it will result in death.” (People v. Watson, supra, 30 Cal.3d at p. 300, italics added; see also People v. Davenport (1985) 41 Cal.3d 247, 262 [221 Cal.Rptr. 794, 710 P.2d 861]; People v. Poddar (1974) 10 Cal.3d 750, 757 [111 Cal.Rptr. 910, 518 P.2d 342]; People v. Conley (1966) 64 Cal.2d 310, 321 [49 Cal.Rptr. 815, 411 P.2d 911]; People v. Washington, supra, 62 Cal.2d 777, 782; People v. Thomas (1953) 41 Cal.2d 470, 480 [261 P.2d 1].)

We therefore conclude—by analogy to the established definition of the term “dangerous to life” in the context of the implied malice element of second degree murder (see People v. Watson, supra, 30 Cal. 3d 290)—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. A less stringent standard would inappropriately expand the scope of the second degree felony-murder rule reducing the seriousness of the act which a defendant must commit in order to be charged with murder.⁹

We share the concern Chief Justice Lucas has expressed in his dissent regarding the tragic effects that the abuse of illegal drugs, particularly “crack” cocaine, has on our society. However, it is the Legislature, rather than this court, that should determine whether expansion of the second degree felony-murder rule is an appropriate method by which to address this problem. In the absence of specific legislative action, we must determine the scope of the rule by applying the established definition of inherent dangerousness.

Disposition

We reverse the decision of the Court of Appeal, and direct that court to remand the matter to the trial court for further proceedings consistent with this opinion.

1 The trial court granted the motion only after the prosecution had urged the court to dismiss the murder charge, a suggestion which defense counsel vigorously opposed. This development occurred in the following manner: When the case was called for trial, defendant waived a jury. It appears that in an off-the-record conference with both counsel the trial court indicated it did not believe defendant had committed an inherently dangerous felony, and if similar facts were to be presented at trial it would be inclined to grant a defense motion for a judgment of acquittal on the murder charge at the close of the prosecution’s case. The parties then went on the record, and the prosecutor suggested that the court dismiss the murder charge on its own motion under Penal Code section 1385, which would allow the People to appeal. (Pen. Code, § 1238, subd. (a)(8).) The defense, anticipating a nonappealable acquittal at trial, unsuccessfully urged the court not to dismiss the murder charge.

2 The People have not raised any issue pertaining to Health and Safety Code section 11351.

3 The Court of Appeal properly rejected defendant’s contention that his guilty plea had rendered the appeal moot. (People v. Orin (1975) 13 Cal.3d 937 [120 Cal.Rptr. 65, 533 P.2d 193].)

4 Health and Safety Code section 11352 provides: “Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b), (c), or (g) of Section 11055, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years." Cocaine is one of the numerous drugs covered by the statute. (Health & Saf. Code, § 11054, subd. (f)(1).)

5 Penal Code section 189 provides in relevant part: “All murder which 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, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree; and all other kinds of murders are of the second degree.”

6 Penal Code section 236 reads: “False imprisonment is the unlawful violation of the personal liberty of another.” When we decided Henderson, Penal Code section 237 provided: “False imprisonment is punishable by fine not exceeding five hundred dollars, or by imprisonment in the county jail not more than one year, or by both. If such false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison for not less than one nor more than ten years.”

7 Business and Professions Code section 2053 provides: “Any person who willfully, under circumstances or conditions which cause or create risk of great bodily harm, serious physical or mental illness, or death, practices or attempts to practice, or advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked and unsuspended certificate as provided in this chapter, or without being authorized to perform that act pursuant to a certificate obtained in accordance with some other provision of law, is punishable by imprisonment in the county jail for not exceeding one year or in the state prison, [¶] The remedy provided in this section shall not preclude any other remedy provided by law.”

8 Although the second degree felony-murder doctrine operates as a substitute for implied malice, this does not mean that the doctrine results in a “conclusive presumption” of malice. (See People v. Dillon, supra, 34 Cal.3d at p. 475.) Nevertheless, in determining the proper scope of the second degree felony-murder doctrine, it is appropriate for the courts, in recognition of the Legislature’s authority to define criminal offenses, to attempt to minimize the disparity between the legislatively created and the judicially recognized categories of second degree murder.

9 We are aware that, in enacting the first degree felony-murder rule, the Legislature has determined that deaths occurring in the commission of certain felonies are punishable as first degree murder. (Pen. Code, § 189.) The fact that the Legislature has chosen to single out those offenses in this fashion, however, provides no guidance on the appropriate reach of the second degree felony-murder doctrine in general. As noted earlier, the Legislature of course has the authority to expand or to abolish the second degree felony-murder doctrine.