Full opinion text
Opinion MOSK, J. Defendant appeals from a judgment convicting him of first degree felony murder and attempted robbery. The case presents two principal issues. First, we inquire whether a standing crop can be the subject of robbery; declining to perpetuate an archaic distinction between that crime and larceny, we conclude that it can. We next address a multiple attack on the first degree felony-murder rule. After reviewing its legislative history we find that in California the rule is a creature of statute, and hence cannot be judicially abrogated. We also reject various constitutional challenges to the rule; we hold primarily that the rule does not deny due process of law by relieving the prosecution of the burden of proving malice, because malice is not an element of the crime of felony murder. We further hold, however, that the penalty for first degree felony murder, like all statutory penalties, is subject to the constitutional prohibition against cruel or unusual punishments (Cal. Const., art. I, § 17), and in particular to the rule that a punishment is impermissible if it is grossly disproportionate to the offense as defined or as committed, and/or to the individual culpability of the offender. (In re Lynch (1972) 8 Cal.3d 410 [105 Cal.Rptr. 217, 503 P.2d 921].) Because such disproportion is manifest on the record before us—as it was to the triers of fact—we modify the judgment to punish this defendant as a second degree murderer. As modified, the judgment will be affirmed. At the time of these events defendant was a 17-year-old high school student living in the Santa Cruz Mountains not far from a small, secluded farm on which Dennis Johnson and his brother illegally grew marijuana. Told by a friend about the farm, defendant set out with two schoolmates to investigate it and to take some of the marijuana if possible. After crossing posted barricades and evading a primitive tin-can alarm system, the three boys reached the farm, a quarter-acre plot enclosed by a six-foot wire fence. In an effort to avoid being seen by Johnson, who was guarding the property, the boys tried several different approaches, then hid in a hollow tree stump. Johnson appeared with a shotgun, cocked the weapon, and ordered them out; defendant remained in hiding, but his companions complied. Johnson demanded to know what they were doing there; disbelieving their story that they were hunting rabbits, he told them to get off the property. He warned them that his brother would have shot them if he had met them, adding that the next time the youths came on his property he might shoot them himself. Defendant overheard these threats. The two boys departed promptly, but defendant stayed inside the tree trunk until it grew dark. Finally emerging, he went to take another look at the plantation. Again Johnson confronted him with a shotgun, pointed the weapon at him, and ordered him to go. He left without further ado. Some weeks later defendant returned to the farm to show it to his brother. As the latter was looking over the scene, however, a shotgun blast was heard and once more the boys beat a hasty retreat. After the school term began, defendant and a friend discussed the matter further and decided to attempt a “rip-off” of the marijuana with the aid of reinforcements. Various plans were considered for dealing with Johnson; defendant assertedly suggested that they “just hold him up. Hit him over the head or something. Tie him to a tree.” They recruited six other classmates, and on the morning of October 17, 1978, the boys all gathered for the venture. Defendant had prepared a rough map of the farm and the surrounding area. Several of the boys brought shotguns, and defendant carried a .22 caliber semi-automatic rifle. They also equipped themselves with a baseball bat, sticks, a knife, wirecutters, tools for harvesting the marijuana, paper bags to be used as masks or for carrying plants, and rope for bundling plants or for restraining the guards if necessary. Along the way, they found some old sheets and tore them into strips to use as additional masks or bindings to tie up the guards. Two or three of the boys thereafter fashioned masks and put them on. The boys climbed a hill towards the farm, crossed the barricades, split into four pairs, and spread out around the field. There they saw one of the Johnson brothers tending the plants; discretion became much the better part of valor, and they made little or no progress for almost two hours. Although the testimony of the various participants was not wholly consistent, it appears that two of the boys abandoned the effort altogether, two others were chased away by dogs but began climbing the hill by another route, and defendant and his companion, with the remaining pair, watched cautiously just outside the field of marijuana. One of the boys returning to the farm then accidentally discharged his shotgun, and the two ran back down the hill. While the boys near the field reconnoitered and discussed their next move, their hapless friend once more fired his weapon by mistake. In the meantime Dennis Johnson had circled behind defendant and the others, and was approaching up the trail. They first heard him coming through the bushes, then saw that he was carrying a shotgun. When Johnson drew near, defendant began rapidly firing his rifle at him. After Johnson fell, defendant fled with his companions without taking any marijuana. Johnson suffered nine bullet wounds and died a few days later. I Defendant first contends the court erred in phrasing the attempted robbery charge in terms of CALJIC instructions Nos. 6.00 and 6.01. CALJIC No. 6.00 provides, inter alia, that an attempt to commit a crime requires proof of a specific intent to commit the crime and of. “a direct but ineffectual act done toward its commission”; and that in determining whether such an act took place “it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt,” but the acts will be sufficient when they “clearly indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design . . . .” CALJIC No. 6.01 states, “If a person has once committed acts which constitute an attempt to commit crime, he cannot avoid responsibility by not proceeding further with his intent to commit the crime, either by reason of voluntarily abandoning his purpose or because he was prevented or interfered with in completing the crime.” Defendant in effect maintains that in cases in which an attempted felony is also used to support a charge of homicide on a felony-murder theory, these instructions are too broad because they could result in liability up to and including the death penalty despite the absence of any conduct that would amount to an actual element of the underlying crime, and despite the fact that the perpetrator might voluntarily abandon his criminal plan. In felony-murder cases, therefore, defendant would apparently require proof not only of intent and a direct act beyond mere preparation, but of the commission of an element of the underlying crime other than the formation of such intent, and would allow as a defense the voluntary abandonment of the criminal effort, regardless of how close to consummation it had progressed. We are not persuaded to so limit the law of attempts. The instructions given here accurately state that law (Pen. Code, § 664; see People v. Gallardo (1953) 41 Cal.2d 57, 66 [257 P.2d 29]; People v. Miller (1935) 2 Cal.2d 527, 530 [42 P.2d 308]; People v. Murray (1859) 14 Cal. 159), while defendant’s proposal would frustrate its aim. “One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime.” (People v. Camodeca (1959) 52 Cal.2d 142, 147 [338 P.2d 903].) Accordingly, the requisite overt act “need not be the last proximate or ultimate step towards commission of the substantive crime. ... [f] Applying criminal culpability to acts directly moving toward commission of crime ... is an obvious safeguard to society because it makes it unnecessary for police to wait before intervening until the actor has done the substantive evil sought to be prevented. It allows such criminal conduct to be stopped or intercepted when it becomes clear what the actor’s intention is and when the acts done show that the perpetrator is actually putting his plan into action.” (People v. Staples (1970) 6 Cal.App.3d 61, 67 [85 Cal.Rptr. 589]; see also United States v. Stallworth (2d Cir. 1976) 543 F.2d 1038 [37 A.L.R.Fed 248]; United States v. Coplon (2d Cir. 1950) 185 F.2d 629, 633 [28 A.L.R.2d 1041].) We are satisfied that society is entitled to no lesser degree of protection when the charge is felony murder, involving as it does an attempt to commit a felony that by settled judicial definition must be “inherently dangerous to human life.” (See, e.g., People v. Williams (1965) 63 Cal.2d 452, 457 [47 Cal.Rptr. 7, 406 P.2d 647].) As long as the trier of fact is convinced beyond a reasonable doubt that the defendant intended to commit a crime and was in the process of attempting to carry out that intent, no public purpose is served by drawing fine distinctions between those who have managed to satisfy some element of the offense and those who have not. Nor is it appropriate to carve out a defense of voluntary abandonment in this context. As the jury was properly instructed, subsequent events tending to show such an abandonment are irrelevant once the requisite intent and act are proved. (People v. Staples, supra, 6 Cal.App.3d at p. 69; People v. Claborn (1964) 224 Cal.App.2d 38, 41 [36 Cal.Rptr. 132]; People v. Robinson (1960) 180 Cal.App.2d 745, 750-751 [4 Cal.Rptr. 679]; People v. Carter (1925) 73 Cal.App. 495, 500 [238 P. 1059], and cases cited; Perkins, Criminal Attempt and Related Problems (1954-1955) 2 UCLA L.Rev. 319, 354.) The armed robber who feels a pang of conscience or chill of fear and bolts from the bank moments before the teller can hand over the loot has nevertheless endangered the lives of innocent people. Unlike the repentant conspirator (cf. People v. Crosby (1962) 58 Cal.2d 713, 730-731 [25 Cal.Rptr. 847, 375 P.2d 839]; People v. Beaumaster (1971) 17 Cal.App.3d 996, 1003 [95 Cal.Rptr. 360]), he has taken direct steps towards committing the prohibited act. Public safety would be needlessly jeopardized if the police were required to refrain from interceding until absolutely certain in each case that the criminal would go through with his plan. The law of attempts eliminates precisely that burden once the subject has plainly demonstrated, by his actions, his intent presently to commit the crime. Defendant submits that his proposed test is supported by the following language from People v. Buffum (1953) 40 Cal.2d 709, 718 [256 P.2d 317]: “Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter . . . .” (See also People v. Miller (1935) supra, 2 Cal.2d 527, 530, quoting from 1 Wharton’s Criminal Law (12th ed. 1957) p. 280.) We did not mean by this language, however, to depart from the generally accepted definition of attempt. Our reference to an “appreciable fragment of the crime” is simply a restatement of the requirement of an overt act directed towards immediate consummation; it does not establish the novel requirement that an actual element of the offense be proved in every case. Furthermore, properly understood, our reference to interruption by independent circumstances rather than the will of the offender merely clarifies the requirement that the act be unequivocal. It is obviously impossible to be certain that a person will not lose his resolve to commit the crime until he completes the last act necessary for its accomplishment. But the law of attempts would be largely without function if it could not be invoked until the trigger was pulled, the blow struck, or the money seized. If it is not clear from a suspect’s acts what he intends to do, an observer cannot reasonably conclude that a crime will be committed; but when the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway, and a last-minute change of heart by the perpetrator should not be permitted to exonerate him. Defendant further contends that the evidence in this case was insufficient as a matter of law to support the jury’s verdict that he was guilty of an attempt to commit robbery. The general rule, of course, is that “When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Green (1980) 27 Cal.3d 1, 55 [164 Cal.Rptr. 1, 609 P.2d 468].) And in the case of a prosecution for attempt, an additional rule is applicable. Acts that could conceivably be consistent with innoce.it behavior may, in the eyes of those with knowledge of the actor’s criminal design, be unequivocally and proximately connected to the commission of the crime; it follows that the plainer the intent to commit the offense, the more likely that steps in the early stages of the commission of the crime will satisfy the overt act requirement. (People v. Anderson (1934) 1 Cal.2d 687, 690 [37 P.2d 67]; People v. Berger (1955) 131 Cal.App.2d 127, 130 [280 P.2d 136]; People v. Fiegelman (1939) 33 Cal.App.2d 100, 105 [91 P.2d 156].) Here a rational trier of fact could have found that the evidence clearly demonstrated defendant’s intent to rob. From their prior forays to the marijuana farm, defendant and his companions had learned that it was guarded by armed men who were able and willing to defend it by the use of deadly weapons if necessary. Accordingly, the youths could not have entertained a reasonable expectation that they would be able simply to walk onto the property in broad daylight and take its valuable crop without vigorous resistance by the owners. Rather, they must have known they would probably be required to use force to reach their goal. The inference is fully supported by the undisputed facts that, in response to what they had learned, the boys arranged for reinforcements, repeatedly discussed how they would overpower and restrain the guards, then equipped themselves with ample means to accomplish those ends—i.e., guns, knives, clubs, masks, rope, and strips of sheeting. Doubtless they would have preferred to harvest the marijuana without any such confrontation, but this remote possibility did not negate their evident intent to rob. There was also substantial evidence from which a reasonable jury could have found that defendant accomplished direct but ineffectual acts towards the commission of the intended robbery. It appears that defendant did not actually encroach on the marijuana field before he fled, but this circumstance does not immunize him from criminal liability; to hold otherwise would be to import the technical rules of trespass into the common sense appraisal of facts required of juries in attempt cases, a step that no other California court has taken. Here the conduct of defendant and his companions went beyond mere preparation. Having armed and disguised themselves, they set off for the farm, made their way past barricades posted with “no trespassing” signs, arrived on the scene carrying the means of forcibly subduing any opposition, divided themselves into small groups, encircled the field and watched for their opportunity. Even when they saw that the farm was not unattended and that armed guards were present, they persisted in their enterprise rather than avoid a confrontation by discreetly withdrawing. From prior experience, moreover, they knew that the guards would not hesitate to leave the field in order to drive away any interlopers. The situation they had created was thus fraught with risk of harm, as events would unfortunately soon prove. In light of the above-discussed clear evidence of their intent, the jury could rationally find that the acts of defendant and his companions to that point were sufficient to establish beyond a reasonable doubt that they were engaged in an attempt to commit robbery. The conviction of attempt is thus supported both by the instructions and by the proof. II Defendant next contends that a standing crop of marijuana cannot in any event be the subject of robbery or attempted robbery because it is realty, not personalty. Although defendant’s argument finds apparent support in the common law definition of property subject to larceny, we hold that robbery of a standing crop is punishable in California. We reach this conclusion both because the Legislature has said as much with regard to the lesser included oifense of larceny, and because the common law rule to the contrary is a hypertechnical remnant of an archaic formalism that can no longer be seriously defended. The common law rule limiting larceny to the unlawful taking of personalty derived from the undeniable fact that realty, in the sense of land subject to description by metes and bounds, cannot be “carried away.” (See Perkins, Criminal Law (2d ed. 1969) p. 234.) “Real property under the English law was never the subject of [larceny]. Being incapable of larcenous asportation, it was not regarded as requiring at the hands of the criminal law the same protection as personalty.” (Italics added.) (People v. Cummings (1896) 114 Cal. 437, 440 [46 P. 284].) When restricted to land, the logic of the rule was unassailable. But for various reasons unrelated to the criminal law, “realty” was defined in due course to include many items that can be more or less readily detached and removed from the land. Unfortunately, the legal fiction that these objects are “immovable” has never hindered would-be thieves from moving most of them. Nevertheless, probably because larceny was a felony at common law and therefore a capital offense, judges resisted its application to those who had merely pilfered growing food or wood. Courts therefore clung to the artificial distinction between personal property and things that “savour of the realty” (4 Stephen, New Commentaries on the Laws of England (1st Am. ed. 1846) p. 155), and held that if the thief maintained possession continuously during severance and asportation, the property never became personalty in the possession of its owner and hence no larceny could occur. Put conversely, “if a man come to steal trees, or the lead of a church or house, and sever it, and after about an hour’s time, or so, come and fetch it away, this hath been held felony, because the act is not continuated but interpolated, and in that interval the property lodgeth in the right owner as a chattel.” (1 Hale, Pleas of the Crown (1st Am. ed. 1847) p. 510.) Thus, in a perverse and unintended application of the work ethic, thieves industrious enough to harvest what they stole and to carry it away without pause were guilty at most of trespass, while those who tarried along the way, or enjoyed fruits gathered by the labor of others, faced the hangman’s noose. The rule has long been the subject of ridicule and limitation. Our court first criticized it over a century ago: “This rule involved many technical niceties, which have resulted in what appear to us to be pure absurdities. For example, if the article stolen was severed from the soil by the thief himself and immediately carried away, so that the whole constituted but one transaction, it was held to be only a trespass; but if, after the severance, he left the article for a time and afterward returned for it and took it away on another occasion, then it became a larceny. ... [1] We confess we do not comprehend the force of these distinctions, nor appreciate the reasoning by which they are supported. We do not perceive why a person who takes apples from a tree with a felonious intent should only be a trespasser, whereas, if he had taken them from the ground, after they had fallen, he would have been a thief; nor why the breaking from a ledge of a quantity of rich gold-bearing rock with felonious intent should only be a trespass, if the rock be immediately carried off; but if left on the ground, and taken off by the thief a few hours later, it becomes larceny. The more sensible rule, it appears to us, would have been, that by the act of severance the thief had converted the property into a chattel; and if he then removed it, with a felonious intent, he would be guilty of a larceny, whatever dispatch may have been employed in the removal.” (People v. Williams (1868) 35 Cal. 671, 676.) But while the rule could no longer command the respect of reason, it was nevertheless honored by time, and on that basis alone the court felt compelled to follow it. Reluctantly putting aside common sense in favor of common law, the court confessed that it “adverted to the question mainly for the purpose of directing the attention of the Legislature to a subject which appears to demand a remedial statute.” (Id. at p. 677.) The Legislature was quick to respond. In 1872 it adopted a statute redefining detachable fixtures and crops as personalty subject to larceny, “in the same manner as if the thing had been severed by another person at some previous time.” (Pen. Code, § 495.) Contemporaneously, it enacted a statute dividing the crime of larcenous severance of realty into grand larceny, if the object of the theft is worth $50 or more, and petty larceny otherwise. (Stats. 1871-1872, ch. 218, p. 282; now see Pen. Code, §§ 487b, 487c.) Defendant argues that because those statutes are explicitly directed at larceny only, they reveal a legislative intent to leave intact the common law rule as it applies to robbery. To so argue is to presume the Legislature concluded that although the old rule was absurd as applied to thieves, it should nevertheless be maintained to exonerate robbers. We are given no reason to believe the Legislature intended to be more solicitous of the more violent criminal, nor can we conceive of any rational motivation it could have had for doing so. A more plausible interpretation is that the Legislature foresaw as likely only theft, and not robbery, of things attached to the land: it had little reason to expect that robbers would eschew bank vaults in favor of barnyards, or that farmers would patrol their fields so assiduously that covetous criminals would need to resort to robbery to achieve their ends. Had the Legislature anticipated in 1872 that the meteoric rise in popularity and hence in value of an illicit plant would lead to violent confrontations between black market cultivators and armed bandits, we have no doubt it would have explicitly applied the rule to robbery as well. We recognize that it did not do so. But this circumstance does not compel us to conclude that the old rule as to larceny applies today to robbery. In fact, defendant offers no evidence that there ever existed at common law an explicit doctrine regarding robbery of crops, and we have been unable to find a single case in any jurisdiction raising that precise issue. Ordinarily, of course, we are under no obligation to apply even an exemplary common law rule to an area of law not traditionally associated with it. Defendant points out that despite the lack of any express rule regarding robbery of crops or fixtures, it has always been understood that the law of robbery borrows its definition of subject property from the law of larceny, because the former crime is distinguished from the latter only by the less circuitous means of its accomplishment. (People v. Butler (1967) 65 Cal.2d 569, 572-573 [55 Cal.Rptr. 511, 421 P.2d 703]; People v. Leyvas (1946) 73 Cal.App.2d 863, 866 [167 P.2d 770]; 2 Burdick, The Law of Crime (1946) § 595, pp. 408-409; 4 Blackstone, Commentaries 242.) Defendant’s observation is correct but not dispositive. First, the rule requiring an interruption between severance and asportation has suffered such erosion and criticism during the past century that we no longer feel compelled to preserve it, as this court did in Williams, particularly in an area of law not previously marred by its application. Many courts have found the doctrine at odds with reason and have therefore abolished it rather than await legislative intervention. For instance, the Supreme Court of Nebraska observed in 1905: “These fine technical distinctions and absurd sophistries are repugnant to our conceptions of justice, and the courts of most states have discarded them; while those which in a measure retain them have confined the rule within the most narrow limits. Undoubtedly the modern and true rule is that he who by his wrongful acts converts a fixture into personal property, and then with larcenous intent forthwith carries it away without the consent of the owner, may be rightfully convicted of larceny.” (Junod v. State (1905) 73 Neb. 208, 211 [102 N.W. 462].) In our sister state of Oregon the doctrine, the application of which “at times is so subtle as to require much mental gymnastics,” was overthrown in 1914 in favor of “the simpler, more modern, and better” rule adverted to above. (State v. Donahue (1914) 75 Ore. 409 [144 P. 755, 758, 5 A.L.R. 1121]; see also State v. Day (Me. 1972) supra, 293 A.2d 331, 333; Stephens v. Commonwealth (1947) 304 Ky. 38 [199 S.W.2d 719, 721]; State v. Wolf (1907) 22 Del. 323 [66 A. 739, 741]; Ex parte Willke (1870) 34 Tex. 155, 159.) Of the courts that have hesitated to overrule the doctrine outright, many have found ways of limiting it; some redefine “fixtures” for this purpose to exclude items that the civil law includes in the term (Garrett v. State (1952) 213 Miss. 328 [56 So.2d 809, 810-811] [gas heaters]; Eaton v. Commonwealth (1930) 235 Ky. 466 [31 S.W.2d 718], [copper wire attached to posts]; State v. Berryman (1873) 8 Nev. 262, 269-271 [mineral ore]; Jackson v. State (1860) 11 Ohio St. 104, 112 [leather belt affixed to machinery]; Hoskins v. Tarrance (Ind. 1840) 5 Blackf. 417, 418-419 [key in the lock of a door]), while others effectively eliminate the requirement of a separation between severance and asportation by creative reconstruction of the facts to establish a sufficient temporal gap (Fuller v. State (1948) 34 Ala.App. 211 [39 So.2d 24, 26]; Stansbury v. Luttrell (1927) 152 Md. 553 [137 A. 339, 342]; Commonwealth v. Steimling (1893) 156 Pa. 400 [27 A. 297, 299]). Moreover, in England the rule has been continuously eroded by statute since 1601 (4 Blackstone, Commentaries 233-234), and in those few American jurisdictions in which courts have refrained from adopting the modern rule, lawmakers have often done so. (Commonwealth v. Meinhart (1953) 173 Pa.Super. 495 [98 A.2d 392, 393]; Garrett v. State (Miss. 1952) supra, 56 So.2d 809, 810; Williams v. State (1948) 186 Tenn. 252 [209 S.W.2d 29, 31]; State v. Jackson (1940) 218 N.C. 373 [11 S.E.2d 149, 151, 131 A.L.R. 143]; Beall v. State (1882) 68 Ga. 820.) Hence despite the common law, “it is the generally accepted modern rule that he who by his wrongful act converts a fixture into personal property, and then with larcenous intent forthwith carries it away without the consent of the owner, may be rightfully convicted of larceny.” (50 Am.Jur.2d, Larceny, § 73, p. 245.) Today, the old rule is less justifiable and more mischievous than ever. As the Maine court observed, “In a modern mobile society in which the attachment of all manner of valuable appliances and gadgets to the realty is commonplace, we see no occasion to attribute to the Legislature any intention to so narrowly circumscribe the meaning of the words ‘goods or chattels’ in our larceny statute as to make the stealing of chattels severed from realty an attractive and lucrative occupation.” (State v. Day (Me. 1972) supra, 293 A.2d 331, 333.) We perceive no reason to reach a different conclusion regarding the words “goods” and “chattels” as they apply to robbery in our statute. (See Pen. Code, § 7, subd. (12).) We believe it would come as a great surprise to the potential victim of crime to learn that the more precautions he takes to guard his valuables, and the more violence that must be done to take them from him, the less severe the penalty the law will impose. Because we find no reasoned support for the continued application of the common law rule, even in the narrow context in which it was traditionally invoked, we refrain from extending it to the crime of robbery. Lastly, defendant argues that in 1872 the Legislature expressly restricted the scope of its new rule to larceny by the introductory clause of Penal Code section 495, which states, “The provisions of this Chapter [i.e., chapter 5, relating to theft] apply where the thing taken is any fixture or part of the realty . . . .” But the quoted language does not preclude application of the section to other chapters of the Penal Code; it merely specifies that when its conditions are satisfied, the theft provisions may be applied. Admittedly, it does not authorize its own application to robbery, but it need not do so; that authority exists by virtue of the close relationship between robbery and larceny. (See fn. 7, ante.) Moreover, even if we refrain from employing section 495 for the present purpose, sections 487b and 487c contain no similar language, and are therefore eligible to clarify the law of robbery as it was understood when the Legislature acted, and as it is understood today. We recognize that in the absence of legislative proscription of conduct, there is no crime. (Pen. Code, § 6; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631-632 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].) But we do not hereby expand the definition of robbery; we merely give full effect to a clear legislative intent to eliminate an almost universally disfavored rule from our law. We are confident that in enacting sections 487b, 487c, and 495, the Legislature meant to express its unqualified disapproval of the rule that our predecessors stoically accepted in Williams. To infer therefrom a legislative desire to extend the rule to a new context would be to pervert the historical record and defeat this legislative intent. In the words of Oliver Wendell Holmes, “We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean.” (Roschen v. Ward (1929) 279 U.S. 337, 339 [73 L.Ed. 722, 728, 49 S.Ct. 336].) For the reasons stated, we hold that a robbery within the meaning of section 211 is committed when property affixed to realty is severed and taken therefrom in circumstances that would have subjected the perpetrator to liability for robbery if the property had been severed by another person at some previous time. Defendant was properly convicted of attempting to commit such a robbery. III On the murder charge the court gave the jury the standard CALJIC instructions defining murder, malice aforethought, wilful, deliberate and premeditated first degree murder, first degree felony murder, second degree murder, manslaughter, and self-defense. The felony-murder instruction (CALJIC No. 8.21) informed the jury that an unlawful killing, whether intentional, negligent, or accidental, is murder in the first degree if it occurs during an attempt to commit robbery. Defendant mounts a two-fold attack on the first degree felony-murder rule in this state: he contends (1) it is an uncodified common law rule that this court should abolish, and (2) if on the contrary it is embodied in a statute, the statute is unconstitutional. Defendant first asks us in effect to adopt the position taken by the Michigan Supreme Court in People v. Aaron (1980) 409 Mich. 672 [299 N.W.2d 304, 13 A.L.R.4th 1180] and to abolish the felony-murder rule in a further exercise of the power we invoke in part II of this opinion, i.e., our power to conform the common law of this state to contemporary conditions and enlightened notions of justice. (See, e.g., Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 393-398 [115 Cal.Rptr. 765, 525 P.2d 669], and cases cited.) Defendant emphasizes the dubious origins of the felony-murder doctrine, the many strictures levelled against it over the years by courts and scholars, and the legislative and judicial limitations that have increasingly circumscribed its operation. We do not disagree with these criticisms; indeed, our opinions make it clear we hold no brief for the felony-murder rule. We have repeatedly stated that felony murder is a “highly artificial concept” which “deserves no extension beyond its required application.” (People v. Phillips (1966) supra, 64 Cal.2d 574, 582; accord, People v. Henderson (1977) 19 Cal.3d 86, 92-93 [137 Cal.Rptr. 1, 560 P.2d 1180]; People v. Poddar (1974) 10 Cal.3d 750, 756 [111 Cal.Rptr. 910, 518 P.2d 342]; People v. Satchell (1971) 6 Cal.3d 28, 33-34 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383]; People v. Sears (1970) 2 Cal.3d 180, 186-187 [84 Cal.Rptr. 711, 465 P.2d 847]; People v. Wilson (1969) 1 Cal.3d 431, 440 [82 Cal.Rptr. 494, 462 P.2d 22]; People v. Ireland (1969) 70 Cal.2d 522, 539 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323].) And we have recognized that the rule is much censured “because it anachronistically resurrects from a bygone age a ‘barbaric’ concept that has been discarded in the place of its origin” (Phillips, supra, at p. 583, fn. 6, of 64 Cal.2d) and because “in almost all cases in which it is applied it is unnecessary” and “it erodes the relation between criminal liability and moral culpability” (People v. Washington (1965) 62 Cal.2d 777, 783 [44 Cal.Rptr. 442, 402 P.2d 130]). Nevertheless, a thorough review of legislative history convinces us that in California—in distinction to Michigan—the first degree felony-murder rule is a creature of statute. However much we may agree with the reasoning of Aaron, therefore, we cannot duplicate its solution to the problem: this court does not sit as a super-legislature with the power to judicially abrogate a statute merely because it is unwise or outdated. (See Griswold v. Connecticut (1965) 381 U.S. 479, 482 [14 L.Ed.2d 510, 513, 85 S.Ct. 1678]; Estate of Horman (1971) 5 Cal.3d 62, 77 [95 Cal.Rptr. 433, 485 P.2d 785]; People v. Russell (1971) 22 Cal.App.3d 330, 335 [99 Cal.Rptr. 277].) We begin with Aaron. After a detailed survey of the history of the felony-murder doctrine in England and the United States (299 N.W.2d at pp. 307-316), the opinion observes that in Michigan the Legislature has not seen fit to codify either murder, malice, or felony murder, but instead has left each to be governed by the common law (id. at pp. 319-323). The court then explains, however, that in order to mitigate the harshness of the common law rule that all murders were of one kind and were punishable alike by death (see 2 Pollock & Maitland, History of English Law (2d ed. 1909) p. 485; 4 Blackstone, Commentaries 194-202), the Michigan Legislature adopted in 1837 a statute dividing murder into two degrees with different punishments for each. The statute provides that “murder” committed either (1) by certain listed means (poison, lying in wait, or other wilful, deliberate, and premeditated killing) or (2) during the commission or attempted commission of certain listed felonies (e.g., arson, rape, robbery, or burglary), is murder in the first degree, and all other kinds of murder are murder in the second degree. The opinion points out (299 N.W.2d at pp. 321-323) that the statute is a copy of the first legislation in the nation on this topic, enacted in Pennsylvania in 1794, and that it has long been construed by Michigan courts to be no more than a degree-fixing device, i.e., that when a “murder” is otherwise proved—to wit, an unlawful killing with malice aforethought—the statute simply fixes the degree thereof at first degree if it was committed by one of the listed means or during one of the listed felonies; it does not automatically transform all killings so committed into first degree murder. Concluding that Michigan has no statutory felony-murder rule, the Aaron court stresses that it has already severely restricted the common law felony-murder rule in its prior decisions, e.g., by barring its application when the felony is not “inherently dangerous to human life” or when the homicide is not directly attributable to the defendant because it is committed by the intended felony victim acting in self-defense. (Id. at pp. 324-325.) As a “logical extension” of those decisions, the court holds it no longer permissible in any prosecution in Michigan to automatically equate a mere intent to commit the underlying felony with the malice aforethought required for murder. (Id. at p. 326.) The court concludes by abolishing the common law felony-murder rule in its jurisdiction, reasoning that the rule is either unnecessary—when malice can be proved by other evidence, including when relevant the nature and circumstances of the underlying felony—or unjust— when such malice cannot be proved, because in those cases the rule violates the criminal law’s basic premise of individual moral culpability. (Id. at pp. 327-329.) From the reported history of the 1794 Pennsylvania statute it clearly appears the Aaron court was correct in characterizing it as a degree-fixing measure rather than a codification of the common law felony-murder rule. (See Keedy, History of the Pennsylvania Statute Creating Degrees of Murder (1949) 97 U.Pa.L.Rev. 759, 764-773.) California has a very similar statute, Penal Code section 189, and we need not speculate on its provenance; its draftsmen acknowledged that it was taken directly from the 1794 Pennsylvania statute. (1872 Code Com. note, p. 82.) It is equally clear that with respect to any homicide committed by one of the means listed in section 189—i.e., by bomb, poison, lying in wait, torture, or any other kind of wilful, deliberate and premeditated killing—the California statute, like its Pennsylvania antecedent, is merely a degree-fixing measure: in such cases there must first be independent proof beyond a reasonable doubt that the crime was murder, i.e., an unlawful killing with malice aforethought (Pen. Code, §§ 187, 188), before section 189 can operate to fix the degree thereof at murder in the first degree. At this point, however, our law appears to diverge sharply from that of Pennsylvania and Michigan. With respect to any homicide resulting from the commission of or attempt to commit one of the felonies listed in the statute, our decisions generally hold section 189 to be not only a degree-fixing device but also a codification of the felony-murder rule: no independent proof of malice is required in such cases, and by operation of the statute the killing is deemed to be first degree murder as a matter of law. The difference, as we will show, lies in our history. In its initial session, on April 16, 1850, the California Legislature adopted “An Act concerning Crimes and Punishments,” the first statute regulating the criminal law of this state. (Stats. 1850, ch. 99, p. 229.) Several sections of that act are relevant to our inquiry. As at common law, murder was defined as the unlawful killing of a human being with malice aforethought (§ 19), there was only one degree, and it was punishable by death (§ 21). Manslaughter, an unlawful killing without malice, was divided into its voluntary and involuntary forms. (§ 22.) The latter was defined, inter alia, as a killing in the commission of an unlawful act, with one significant qualification: “Provided, that where such involuntary killing shall happen in the commission of an unlawful act, which ... is committed in the prosecution of a felonious intent, the offence shall be deemed and adjudged to be murder.” (§ 25.) The quoted proviso of section 25 in effect codified the common law felony-murder rule in this state. The next significant event occurred in 1856, when the Legislature amended section 21 of the Act of 1850 to divide the crime of murder into two degrees: first degree murder was defined as that committed by certain listed means or in the perpetration of certain listed felonies, while all other murders were of the second degree. Except for the addition of the category of murder by means of torture, the quoted language of amended section 21. was identical to the 1794 Pennsylvania statute. (Compare Keedy, op. cit. supra, 97 U.Pa.L.Rev. at p. 773.) It was therefore construed in the same way by this court, i.e., as a degree-fixing measure designed to mitigate the harshness of the common law of murder. (See, e.g., People v. Moore (1857) 8 Cal. 90, 93; People v. Bealoba (1861) 17 Cal. 389, 393-399.) The court explained that by adopting the amendment the Legislature did not “attempt to define murder anew, but only to draw certain lines of distinction by which it might be told in a particular case whether the crime was of such a cruel and aggravated character as to deserve the extreme penalty of the law, or of a less aggravated character, deserving a less severe punishment.” (People v. Haun (1872) 44 Cal. 96, 98; accord, People v. Keefer (1884) 65 Cal. 232, 235 [3 P. 818].) Thus on the eve of the enactment of the Penal Code of 1872, two relevant statutes were in force in California: (1) section 25 of the 1850 act, which codified the felony-murder rule; and (2) amended section 21 of the same act, which divided the crime of murder into degrees and tailored the punishment accordingly. The two statutes were not only consistent but complimentary. When a killing occurred in the commission of a felony, section 25 declared it to be murder; thereupon section 21 prescribed the degree of that murder according to the particular felony involved—first degree if the felony was arson, rape, robbery, or burglary, second degree if it was any other felony. This court recognized the relationship between the statutes in a decision reviewing a conviction of murder committed shortly before the Penal Code of 1872 took effect. (People v. Doyell (1874) supra, 48 Cal. 85.) The court first observed (at p. 94) that “Whenever one, in doing an act with the design of committing a felony, takes the life of another, even accidentally, this is murder. (Acts of 1850, p. 220, Sec. 25; . . .)” The court then reasoned that the 1856 amendment of section 21 “did not change the law of murder, done in the attempt to commit a felony. It only prescribes a severer punishment where the murder is committed in the attempt to perpetrate arson, rape, robbery or burglary (on account of the enormity of these offenses), than where it is committed in carrying out any other felonious design.” (Id., at pp. 94-95.) What was plainly evident before 1872, however, was much less so after the adoption of the Penal Code. The enactment of that code operated to repeal the Act of 1850, including therefore sections 21 and 25. (Pen. Code, § 6.) But of those two provisions only section 21 reappeared in the Penal Code, as section 189 thereof; by contrast, the felony-murder provision of section 25 was not reenacted in the new code, and hence “ceased to be the law.” (People v. Logan (1917) 175 Cal. 45, 48 [164 P. 1121].) From the drawing of such a deliberate distinction between the two provisions, and from the wording of section 189 itself, certain inferences arise which point to a conclusion that the Legislature meant the section to operate, like its predecessor, solely as a degree-fixing measure. First, “It is ordinarily to be presumed that the Legislature by deleting an express provision of a statute intended a substantial change in the law.” (People v. Valentine (1946) 28 Cal.2d 121, 142 [169 P.2d 1]; accord, People v. Schmel (1975) 54 Cal.App.3d 46, 51 [126 Cal.Rptr. 317].) Under this principle, the Legislature’s decision not to reenact the felony-murder provision of section 25 in the 1872 codification implied an intent to abrogate the common law felony-murder rule that the section had embodied since 1850. Second, aside from a few grammatical changes the wording of section 189 was identical to that of section 21. (Compare fns. 13 & 14.) Indeed, its draftsmen acknowledged this obvious fact: “This section is founded upon Sec. 21 of the Crimes and Punishment Act, as amended by the Act of 1856.—Stats. 1856, p. 219. The Commission made no material change in the language.” (1872 Code Com. note, p. 82.) In these circumstances, the code itself decreed the proper construction of section 189: “The provisions of this Code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.” (Pen. Code, § 5.) Third, when a statute defines the meaning to be given to one of its terms, that meaning is ordinarily binding on the courts. (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 156 [137 Cal.Rptr. 154, 561 P.2d 244]; People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 638 [268 P.2d 723].) It is presumed the word was used in the sense specified by the Legislature, and the statute will be construed accordingly. (Application of Monrovia Evening Post (1926) 199 Cal. 263, 270 [248 P. 1017].) In the 1872 Penal Code the Legislature simultaneously enacted section 187, defining the crime of “murder” as “the unlawful killing of a human being, with malice aforethought,” and section 189, providing that “murder” committed in certain ways constituted murder in the first degree. Under this principle, the word “murder” in section 189 would have had the meaning prescribed for it in section 187, i.e., an unlawful killing “with malice aforethought. ” Fourth, it is generally presumed that when a word is used in a particular sense in one part of a statute, it is intended to have the same meaning if it appears in another part of the same statute. (Stillwell v. State Bar (1946) 29 Cal.2d 119, 123 [173 P.2d 313]; accord, Santa Clara County Dist. Attorney Investigators Assn. v. County of Santa Clara (1975) 51 Cal.App.3d 255, 263, fn. 4 [124 Cal.Rptr. 115]; see also People v. Hernandez (1981) 30 Cal.3d 462, 468 [179 Cal.Rptr. 239, 637 P.2d 706], and cases cited.) This rule would seem to apply a fortiori to section 189, where in a single compound sentence the Legislature used the word “murder” only once but with two referents (fn. 14, ante): the section defined first degree murder as all “murder” (1) which is committed by certain listed methods or (2) which is committed during certain listed felonies. As noted above (fn. 11, ante), in the first half of this sentence the word “murder” means an unlawful killing committed with malice aforethought; under the foregoing rule, the same word would have had the same meaning in the second half of the same sentence (i.e., murder during the listed felonies). Seeking to overcome these inferences, the Attorney General contends that three items of statutory history are proof of a contrary legislative intent. He first relies on the California Code Commission’s note to section 189, but in point of fact that commentary sheds little or no light on the issue before us. The commission began with a correct historical justification for the continued role of section 189 as a degree-fixing measure. Nowhere in the remainder of the note, however, did the commission assert that the statute was also intended to serve the purpose of former section 25 by codifying the felony-murder rule. Instead, the note merely quoted with approval a long passage from an 1864 opinion of this court (People v. Sanchez, 24 Cal. 17, 29-30) which discussed how to distinguish between the two degrees of murder—i.e., how to administer the degree-fixing function of former section 21. It is true the discussion included a statement to the effect that “where the killing is done in the perpetration or attempt to perpetrate some one of the felonies enumerated in [section 21] ... the jury have no option but to find the prisoner guilty [of murder] in the first degree.” (Italics added; id. at p. 29.) But the Sanchez court obviously did not mean thereby to transform section 21 into a statutory felony-murder rule, as the Legislature had already codified that rule 14 years earlier in section 25. When carefully read in context, rather, both the quoted statement and the entire passage of Sanchez in which it appeared amounted to no more than an explanatory review of the then-prevailing, pre-1872, statutory law. Lacking direct evidence in the history of the murder statute, the Attorney General next refers us to the evolution of the manslaughter statute during the same period. The 1850 act (Stats. 1850, ch. 99, p. 229) provided a rather diffuse definition of manslaughter, covering four sections. (§§ 22-25.) Involuntary manslaughter was defined as an unintentional killing occurring in the commission of either (1) a lawful act likely to produce death, in an unlawful manner or without due caution, or (2) “an unlawful act.” (§§ 22, 25.) In 1872 the manslaughter definitions of 1850 were reenacted in simplified form as section 192 of the Penal Code. No change in meaning was intended, and the commission reported that section 192 “embodies the material portions” of sections 22 through 25 of the 1850 law. (1872 Code Com. note, p. 85.) One change in wording, however, is now stressed by the Attorney General. As we have seen, in drafting section 192 the commission deleted the proviso of former section 25 which affirmatively declared that when the “unlawful act” is a felony the killing will be deemed murder; but at the same time the commission added to the definition of manslaughter during an “unlawful act” the qualifying phrase, “not amounting to felony.” In the Penal Code of 1872 (§ 16) any unlawful act “not amounting to felony” was a misdemeanor, and the primary purpose of the latter phrase was therefore to codify the misdemeanor-manslaughter rule that had been implied in the 1850 legislation. The Attorney General apparently contends the quoted phrase should also be read as a negative pregnant implying that the commission had elsewhere affirmatively provided for a corresponding felony-murder rule: i.e., by specifying that a killing during an unlawful act “not amounting to felony” was deemed manslaughter by operation of section 192, the commission assertedly implied that a killing during an unlawful act which did amount to felony was deemed murder by operation of another statute. The inference is not unreasonable, but the question remains: which other statute was believed by the commission to codify the felony-murder rule? For the answer, the Attorney General turns to his third and last piece of evidence, to wit, the legislative history not of homicide but of the crime of arson. The arson statute in force before adoption of the Penal Code contained a specialized felony-murder rule applicable to that felony alone. In 1872 the commission rewrote the prior law of arson into sections 447 to 455 of the Penal Code, but omitted the specialized felony-murder rule from the new statutory scheme. Its official comment to section 455 read in its entirety: “This chapter is founded upon Secs. 4,5, and 6, of Act concerning crimes and punishments of 1856.—Stats. 1856, p. 132. The text omits the clause in Sec. 4 [sz'c] which provides that ‘should the lives of any persons be lost in consequence of such burning the offender shall be deemed guilty of murder, and shall be indicted and punished accordingly. ’ This provision is surplusage, for the killing in that case is in the perpetration of arson, and falls within the definition of murder in the first degree.—See Sec. 189, ante.” (Italics added.) (1872 Code Com. note, p. 176.) From the emphasized language the Attorney General asks us to infer that the commission intended its proposed version of section 189 to incorporate a statutory first degree felony-murder rule, i.e., that as to any killing occurring during the commission of one of the listed felonies (including therefore arson) the section served both (1) the felony-murder function of making such killing the crime of murder and (2) the degree-fixing function of making that crime murder in the first degree. Again the inference is not unreasonable, although it may be doubted that the commission thought the matter through as carefully as the Attorney General would have us conclude. Rather, it appears the commission simply assumed it was making no change in the law: its heavy reliance on the 1864 Sanchez opinion in its note to section 189 suggests the commission read that opinion to mean that the predecessor to section 189—i.e., amended section 21 of the 1850 act—had itself codified the felony-murder rule. For the reasons explained above, that reading of either Sanchez or section 21 would have been mistaken. Nevertheless, for present purposes any such error by the commission is immaterial. It no longer matters that the commission may have misread pre1872 law on this point; what matters is (1) the commission apparently believed that its version of section 189 codified the felony-murder rule as to the listed felonies, and (2) the Legislature adopted section 189 in the form proposed by the commission. “When a statute proposed by the California Code Commission for inclusion in the Penal Code of 1872 has been enacted by the Legislature without substantial change, the report of the commission is entitled to great weight in construing the statute and in determining the intent of the Legislature.” (People v. Wiley (1976) 18 Cal.3d 162, 171 [133 Cal.Rptr. 135, 554 P.2d 881]; accord, Keeler v. Superior Court (1970) supra, 2 Cal.3d 619, 630, and cases cited in fn. 15.) If we assume the 1872 Legislature drew the inferences that the Attorney General now asks us to draw regarding the intent of the commission, the quoted rule compels us to conclude that the Legislature acted with the same intent when it adopted section 189. Nothing in the ensuing history of section 189 (see fn. 14, ante) suggests that the Legislature acted with any different intent when it subsequently amended the statute in various respects, most recently in 1981. We infer that the Legislature still believes, as the code commission apparently did in 1872, that section 189 codifies the first degree felony-murder rule. That belief is controlling, regardless of how shaky its historical foundation may be. Accordingly, although the balance remains close, we hold that the evidence of present legislative intent thus identified by the Attorney General is sufficient to outweigh the contrary implications of the language of section 189 and its predecessors. We are therefore required to construe section 189 as a statutory enactment of the first degree felony-murder rule in California. IV Defendant contends in the alternative that if section 189 codifies the first degree felony-murder rule, the statute is unconstitutional. He principally urges that the rule violates due process of law in two respects. First, he invokes the principle that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (Italics added.) (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068].) He then reasons as follows: because malice aforethought is an element of the crime of murder as defined in California (Pen. Code, § 187), the quoted language of Winship requires the People to prove malice beyond a reasonable doubt in every murder prosecution. When such a prosecution is conducted on a theory of felony murder, however, the felony-murder rule relieves the People of this burden of proof because it raises a “presumption” of malice from the defendant’s intent to commit the underlying felony. The rule, defendant concludes, thus violates the due process clause. For specific authority defendant relies on Mullaney v. Wilbur (1975) 421 U.S. 684 [44 L.Ed.2d 508, 95 S.Ct. 1881], and Sandstrom v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450]. In Mullaney the defendant was convicted of murder under a Maine statutory scheme which defined murder as an unlawful killing with malice aforethought, yet required the prosecution to prove beyond a reasonable doubt only that the homicide was unlawful (i.e., neither justifiable nor excusable) and intentional; when the prosecution established those two elements, malice would be presumed unless the defendant could prove by a preponderance of the evidence that he had acted in the heat of passion on sudden provocation (i.e., without malice). The United States Supreme Court held it a denial of due process to thus shift to the defendant the burden of disproving an ingredient of the offense charged against him, even though it affected only the degree of his guilt. In Sandstrom the defendant was convicted of “deliberate homicide,” defined by Montana law as a killing which is “purposely or knowingly” committed. The United States Supreme Court held it a denial of due process in that context to instruct the jury that the law presumes a person intends the ordinary consequences of his voluntary acts. (See Evid. Code, § 665.) The court stressed that the question whether the homicide was committed “purposely or knowingly”—i.e., the defendant’s state of mind with respect to the killing—was an essential element of the crime under the Montana statutory scheme. (442 U.S. at pp. 520-521 [61 L.Ed.2d at p. 49].) The court then reasoned (at pp. 521-523 [61 L.Ed.2d at pp. 49-51]) that if the jury understood the challenged instruction to state a conclusive presumption, it would have wholly denied the defendant the benefit of the presumption of innocence on the mental element of the crime, a procedure unconstitutional under Morissette v. United States (1952) 342 U.S. 246, 274-275 [96 L.Ed. 288, 306, 72 S.Ct. 240]. If on the other hand the jury took the instruction to raise a rebuttable presumption, it would have shifted to the defendant the burden of disproving the same element, a procedure unconstitutional under Mullaney. (442 U.S. at p. 524 [61 L.Ed.2d at p. 51].) We do not question defendant’s major premise, i.e., that due process requires proof beyond a reasonable doubt of each element of the crime charged. (See Pen. Code, § 1096; People v. Vann (1974) 12 Cal.3d 220, 225-228 [115 Cal.Rptr. 352, 524 P.2d 824].) Defendant’s minor premise, however, is flawed by an incorrect view of the substantive law of felony murder in California. To be sure, numerous opinions of this court recite that malice is “presumed” (or a cognate phrase) by operation of the felony-murder rule. But none of those opinions speaks to the constitutional issue now raised, and their language is therefore not controlling. (In re Tartar (1959) 52 Cal.2d 250, 258 [339 P.2d 553], and cases cited.) Addressing the issue for the first time, we start with the indisputable fact that if the effect of the felony-murder rule on malice is indeed a “presumption,” it is a “conclusive” one. It does not simply shift to the defendant the burden of proving that he acted without m