Levin, J.

Leslie Taylor Morrin was convicted of first-degree murder1 by a jury in Monroe County Circuit Court. At the trial he testified that he killed the victim in self-defense. His evidence, coupled with the jury’s unquestioned right to reject the claim of self-defense, provided sufficient evidence to sustain a verdict finding that he committed the crime of second-degree murder by killing another human being with malice aforethought.2

The statutory offense of which Morrin was convicted was, however, first-degree, not second-degree, murder. Although evidence that a homicide was committed with malice aforethought will support a conviction of second-degree murder, to convict an accused person of first-degree murder the people must additionally prove that the murder was committed with willfulness, deliberation, and premeditation. We hold that the evidence presented in this case is not sufficient to support a reasonable inference that Morrin killed his victim with the requisite deliberation and premeditation.

*307There is, however, no need to order a new trial. The jury’s verdict, read in the light of the judge’s charge, constituted an express finding that the homicide was intentional and neither justifiable nor excusable nor committed under circumstances of mitigation, and hence that it was committed with malice aforethought. Since a conviction of second-degree murder is proper upon such a finding, we remand for entry of a judgment convicting Morrin of second-degree mnrder. Upon conviction of first-degree murder a life sentence is mandatory. A defendant convicted of second-degree murder may, but need not, be sentenced to a life term. Morrin shall, therefore, be resentenced.

I.

Morrin killed William Abell, a 53-year-old unmarried male. Abell died from some combination of eight blows to the head inflicted by Morrin with a large pair of tongs.

There were no witnesses to the killing or the events that preceded it. Morrin’s testimony is the only affirmative evidence concerning the circumstances of the killing.

Morrin was 37 years old at the time of the killing. He was a millwright by trade. On March 27, 1967, at approximately 8:30 a.m., he completed 17 hours of work in Oregon, Ohio. He testified that after eating breakfast he went to a union hall in nearby Toledo, Ohio, to talk to the union’s business agent. Finding that the agent was not there, he stopped at a nearby bar, where he periodically phoned the union hall to see if the business agent had returned. Morrin drank seven or eight glasses of beer before 1 p.m., when he learned the agent was gone for the day.

*308While sitting in the bar, Morrin was approached by Abell, a complete stranger. Abell asked for a ride to Erie, Michigan, which was near Morrin’s home in Monroe, Michigan. After Morrin learned that the business agent was unavailable, he and Abell left together.

When they reached Erie, Abell asked to be taken to a specific location. Morrin agreed, and proceeded at Abell’s direction to traverse a number of quite remote, unpaved roads. Ultimately the car became mired in a mudhole. Abell alighted to push while Morrin attempted to extricate the vehicle by rocking the wheels. Their joint efforts succeeded, and the car was freed, whereupon Abell re-entered the car.

At this point, Morrin testified, Abell pulled out a knife. Grabbing Morrin by the hair, he held the knife to his throat. Morrin offered to let Abell have all the money in his possession. Abell said that Morrin would first have to commit an oral sexual act upon him.

With Abell still holding the knife at Morrin’s throat, they slid out of the car, whereupon Morrin was forced to assume a kneeling position, facing Abell. Abell directed Morrin to remove his (Abell’s) trousers, but when Morrin did not move Abell partially removed them himself. Abell then commanded Morrin to commit the sexual act. When Morrin still did not move, Abell grasped him by the back of the head to pull him forward.

Morrin testified that he then struck Abell in the testicles. Rising to his feet, Morrin started to flee before he saw Abell advancing on him with the knife. Morrin then grabbed a large pair of tongs from the back seat of the car. (The tongs apparently were one of the tools of his trade and he customarily took them on trips to and from work.) *309A struggle then ensued and the two men exchanged blows. Finally, as Morrin swung the tongs, they entered Abell’s rectum. Abell fell forward slightly and Morrin struck him several more times with the tongs. When Abell fell to the ground, Morrin seized Abell’s knife and threw it away. (The knife was not found.)3 Morrin then ran to his car and drove away. He drove straight home, stopping once at a gasoline station. He told the attendant that he had been in a scuffle.

Upon reaching home, he was in a distraught and hysterical state. His wife called his sister who immediately came over. Morrin said that he had hurt someone, perhaps killed him. He was crying and somewhat incoherent. He kept repeating the words, “if he hadn’t disgusted me so”. He took his sister out to the car to convince her that he was telling the truth. His sister washed the blood off the car and also washed the tongs which were in the hack seat.

Morrin and his sister drove hack to the place of the fight to see whether Abell was alive. The sister drove. It took them some time to find the exact place. Morrin alone got out of the car and found that Abell was, indeed, dead. They then returned home. It was agreed that they would do nothing immediately hut would take some action the next morning.

The sister then returned to her home and phoned an attorney who then phoned the police. The police picked up the sister who took them to Abell’s body. Morrin said that the next morning, without having *310heard from his sister, he decided to turn himself in. He met the police on the way to his sister’s home.

This was substantially the evidence upon which the case went to the jury. The prosecution introduced numerous photographs of the deceased taken at the scene. Morrin produced two character witnesses. Throughout the trial, the prosecutor repeatedly emphasized the bizarre rectal wound suffered by Abell; he claimed that the wound was inflicted after Abell was already dead.

The jury was instructed on the elements of first-degree murder, second-degree murder, and manslaughter, as well as self-defense.

II.

Homicide, the killing of one human being by another, may be innocent or criminal. There are two categories of innocent homicide; they are called justifiable homicide and excusable homicide. Homicide is “justifiable” if it is authorized {e.g., self-defense) or commanded {e.g., execution of a death sentence) by law. Homicide is “excusable” if the death is the result of an accident and the actor was not criminally negligent.4

A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought.5 Malice aforethought is the intention to kill, actual or implied,6 under circumstances which do not constitute excuse or justification or mitigate *311the degree of the offense to manslaughter.7 The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm.8 (The common-law felony-murder rule is an example of implied intent or implied malice aforethought.)9

Thus, as “malice aforethought” is now defined, a killing may be murder even though the actor harbored no hatred or ill will against the victim10 and *312even though he “acted on the spur of the moment”.11 Whatever may be the philological origin of the words “malice aforethought”, today “each word has a different significance in legal usage than in ordinary conversation”.12

The nature of malice aforethought is the source of much of the confusion that attends the law of homicide.13 The cause of this confusion has been the *313evolution of malice aforethought from an independently significant element of murder to a “term of art”14 whose significance is largely historical and procedural.

The precise roots of malice aforethought are uncertain.15 Common-law courts spoke of “malice prepense” as early as the 13th century.16 The requirement that malice aforethought he established in all murder prosecutions represented the common law’s recognition that a rational legal system will punish certain homicides (for example, those that are intentional) while excusing others (accidental homicides, for example).

From the beginning malice aforethought was defined principally in functional terms. We know *314what it did; it both distinguished criminal from innocent homicide and murder from manslaughter. Yet what it was, the precise state of mind which it described, eluded symmetrical definition.17

The common-law courts were faced with a difficult problem: malice aforethought was a requisite ele*315ment of murder, but one so elusive that in many cases it resisted direct proof. Their solution was to create a presumption of malice. As early as the 16th century proof that the accused person killed the victim gave rise to a “presumption” that the act was done with malice aforethought. Once it was established that the accused killed the victim, the burden was upon the accused to prove circumstances of justification, excuse, or mitigation.18

This rule, firmly rooted in English law, has taken hold in a great many American jurisdictions,19 including Michigan :

“if the act of killing was proved, the presumption of law is that it was done with malice aforethought. *316* * * The burden of disproving malice is in all cases of murder cast upon the prisoner.”20 People v. Potter (1858), 5 Mich 1, 9.

The merits of the rule are that it relieves the prosecution from the necessity of proving the nonexistence of circumstances of excuse, justification, and mitigation — frequently an impossible burden — and instead allocates the burden of proving such circumstances to the defendant, who, arguably, has greater ability to do so than the prosecution.

“Ordinarily the government must prove beyond a reasonable doubt each element of the offense charged. But where the pertinent information is much more readily available to the defendant than to the government, the burden may be shifted to him, provided this can be done ‘without subjecting the accused to hardship or oppression’. Morrison v. California (1934), 291 US 82, 87-89 (54 S Ct 281, 284; 78 L Ed 664). This proviso is required to safeguard the presumption of innocence.” Communist Party of United States v. United States (1963), 118 App DC 61 (331 F2d 807, 814).

There is also, however, a grave drawback to this presumptive device. This defect arises in connection with jury instructions. To instruct a jury that malice is presumed from the fact of killing is to invite confusion concerning the ultimate burden of proof in the trial. The prosecution must always prove the defendant guilty beyond a reasonable doubt; a rule of law that shifts the burden of proof with respect to “malice” tends to cloud the dimensions of the prosecution’s ultimate burden.

*317It was this danger which led the House of Lords in 1935 to repudiate instructions that charged jurors that they are to presume malice from the mere fact of killing.21 Speaking of the presumption of innocence as a “golden thread” running through the common law,22 the Court rejected a formulation that required the jurors to find a defendant guilty unless he discharged his burden of rebutting the presumption of malice.

The Court did not rule that malice must be proved by evidence independent of the killing itself. The fact of homicide still permits the jury to find malice aforethought. But it in no sense compels such a finding, even absent any evidence of excuse, justification or mitigation on the part of the defendant.

*318“All that is meant is that if it is proved that the conscious act of the prisoner killed a man and nothing else appears in the case, there is evidence upon which the jury may, not must, find him guilty of murder.” Woolmington v. The Director of Public Prosecutions, [1935] AC 462, 480.23

The Michigan Supreme Court recognized at an early date the importance of categorizing malice aforethought as a permissible inference rather than a presumption. In Maher v. People (1862), 10 Mich 212, 217, 218, the Court said:

“To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime can not exist; and, as every man is presumed innocent of the offense with which he is charged till he is proved to he guilty, this presumption must apply equally to both ingredients of the offense — -to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, rests equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, hut to he established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the court to define the legal import of the term, malice aforethoug’ht, or, in other words, that state or disposition of mind which constitutes it; hut the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact *319in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way hearing upon the question, as in their judgment, they deserve: and that the court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist.” (Emphasis by the Court.)

This firm admonition that the presumption of innocence applies to the element of malice as well as to the other elements of the offense and that malice aforethought is a permissible inference — not a mandatory presumption — arising from the fact of homicide is invaluable as an obstacle to one species of confusion in jury instructions.

There is, however, really no need to attempt to educate jurors about malice aforethought, a term which means one thing to laymen and something altogether different in the law. There is no need to tell a jury why the court thinks there is sufficient evidence to convict. From the fact that the judge is charging the jury rather than directing a verdict, it is apparent that the court is satisfied that there is sufficient evidence to justify reasonable men in finding the defendant guilty beyond a reasonable doubt.

“The arcane jargon of the law should not be recited in vacuo but, rather, the law pertinent to the case should be related in a meaningful manner to the evidentiary facts of the case.” Hill v. Harbor Steel & Supply Corporation (1965), 374 Mich 194, 208.

Consider that the term “malice aforethought” is supposed to signify both what murder is: the pres*320ence of an essential element of tlie offense (intent to kill, actual or implied), and what it isn’t: the absence of certain defenses (excuse and justification) — but not other defenses24 — and, as well, the absence of circumstances which would mitigate the seriousness of the offense reducing it to manslaughter. Add that the term “malice aforethought” does not mean malice as used in ordinary speech,25 and forethought is not required, and it becomes clear that it is well-nigh impossible to communicate to jurors in the arcane jargon of malice aforethought the mental state required. No doubt many jurors are confused, and many, in error but understandably, make up their own working definition out of their own appreciation of what maliee aforethought “must” mean.

“The retention of ‘malice’ in the law of murder is a constant source of trouble and confusion. The word has long been a highly technical ‘word of art’ practically never used in its natural meaning and so ambiguous and indefinite that lawyers and judges themselves find difficulty in treading the mazes of its various meanings. It is no wonder that the average juryman is completely lost when he at*321tempts, under the instructions ordinarily given, to make the distinction between malice in its ordinary sense and malice in law. Furthermore, there is no practical reason for the longer retention of the term. The various situations which constitute murder can be better enumerated in the statute in plain and unambiguous language and the present uncertainty removed.” Moreland, Law of Homicide, pp 205, 206.26

The new penal codes,27 in defining the crime of murder, eliminate the word “malice.” Although Michigan has not remolded its penal code along these lines, a restatement of the common law need not wait upon legislative action. Murder is a common-law crime: “Neither murder nor manslaughter is defined by our statutes, and the definition of murder remains the same as at common law”. 3 Gillespie, Michigan Criminal Law and Practice, § 1637, p 1969. If the language of the common law is mis*322leading it should he clarified. It is the duty of the common-law courts to speak clearly in language that jurors can understand, not to persist in the lazy repetition of words which have lost all capacity to convey relevant thoughts and which are frequently misleading.

The problem of formulating suitable instructions on malice aforethought does not lend itself to ready solution.28 Although the formulation of jury instructions is outside the scope of this opinion, defendants charged with murder will either deny that they killed the victim or direct their defense toward the proof of facts inconsistent with malice aforethought, claiming either that they did not intend to kill or, even if it is found that they did, that the homicide was justified, excusable, or committed under circumstances of mitigation.

In People v. Dunn (1925), 233 Mich 185, 197, the Supreme Court of Michigan observed:

“In practical application legal refinements of definition over which those learned in the law often differ are of scant aid to a jury.

“ ‘If the jurors are told what constitutes legal justification or excuse, and what circumstances will *323reduce the killing to manslaughter, they have all the law they need to determine whether the particular homicide is murder or not, without the mention o± the word malice.’ 13 ECL p 773.”

Courts might well emphasize that juries can convict of murder only when they are convinced beyond a reasonable doubt that (1) the defendant intended (actually or impliedly) to kill and (2) circumstances of justification, excuse or mitigation do not exist. A judge could, for example, charge that the defendant is guilty of the crime of murder if the jurors find, beyond a reasonable doubt, that he killed the victim and that he actually intended to kill the victim or (where relevant), although he did not actually intend to kill, he actually intended to inflict great bodily harm or engaged in behavior the natural tendency of which is to cause death or great bodily harm, unless (where relevant) the jurors have a reasonable doubt whether (i) circumstances of mitigation are present, in which event the offense is reduced from murder to manslaughter, or (ii) the killing was accidental, or (iii) the defendant justifiably acted in self-defense.

We have addressed ourselves to this perplexing question in order to make clear the nature of the presumption of malice aforethought, to caution against misdirection of jurors regarding the “presumption”, and to show why in the instant case there was adequate evidence to sustain a conviction of common-law, i.e., second-degree, murder. The fact that Morrin killed his victim was not in dispute. From this fact, the jury was permitted to infer that the killing was committed with malice aforethought. Morrin’s testimony concerning self-defense sought to nourish a reasonable doubt in the minds of the jurors as to the existence of this inferential fact. The jury, nevertheless, chose to draw the requisite *324inference and exercised its prerogative to disbelieve Morrin’s exculpatory testimony.

III.

First-degree murder is a statutory offense. It is tbe common-law offense of murder (homicide committed with “malice aforethought”) with an added element:

“All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” MCLA § 750.316 (Stat Ann 1954 Rev § 28.548).

We turn to the question of whether the people proved that the murder of William Abell was committed with deliberation and premeditation. The connotative similarities between the words “aforethought” and “premeditation” have confused many courts; 29 malice aforethought and premeditation are *325not, in legal terminology, synonymous.30 Malice aforethought is a term of art firmly rooted in the common law.31 Premeditation and deliberation are legislative offspring and are to be construed in the light of the statutory scheme.

At common law all murders were punishable by death. The severity of this rule led Pennsylvania to enact, in 1794, the first statute dividing murder into degrees.32 The Pennsylvania statute defined first-degree murder as a killing committed willfully and with premeditation and deliberation and classified “all other kinds of murder” as second-degree murder. Only first-degree murder was punishable by death.

Michigan adopted the Pennsylvania statute verbatim by 1838.33 At one time all but ten states had similar statutes.34

As noted above, the division of murder into degrees was prompted by a feeling that not all murders reflected the same quantum of culpability on the part of the wrongdoer. Conviction of first-degree murder carries an automatic sentence of life imprisonment without possibility of parole, while second-degree murder is punishable by imprisonment for life or for any terms of years and the offender is parolable.

Decisions of the Michigan Supreme Court have, from the beginning, acknowledged that first-degree *326murder is a “more atrocious” crime than its second-degree counterpart.35 In 1876, the Michigan Supreme Court observed:

“It was rightly considered that what is done against life deliberately indicates a much more depraved character and purpose than what is done hastily or without contrivance.” Nye v. People (1876), 35 Mich 16, 19.

The clarity of the policy underlying the statutory division of murder into degrees contrasts sharply with the lack of precise standards for determining what constitutes premeditation and deliberation sufficient to establish first-degree murder. Since premeditation and deliberation are all that distinguish first-degree from second-degree murder, imprecise definition of these elements tends to erode the distinction between the two offenses.

A number of jurisdictions have all but obliterated this distinction by observing the rule that premeditation and deliberation need precede the homicidal act only momentarily.36 (This is probably the result of the mistaken assumption that malice aforethought means with “premeditation” and the unthinking adoption of the cases which long before the statutory grading of murder into two degrees had held that premeditation was not required to establish malice aforethought.)37 The rule prevalent in those jurisdictions grants the jury an unstructured discretion to find premeditation and deliberation in any murder case.

Michigan adheres to a more meaningful standard.38 Nye v. People, supra, struck down a jury *327instruction that a willful, deliberate design to take life “might be formed an instant before the act”. The Court ruled that “it is a perversion of terms to apply the term deliberate to any act which is done on a sudden impulse”. In Nye the homicide occurred in a sudden affray; the Supreme Court held that there was no testimony whatever upon which a verdict of murder in the first degree could properly have been rendered.

Aside from the language of Nye, the Michigan cases do not attempt to define premeditation and deliberation with any specificity. Lack of suitable definitions, however, has not prevented the Michigan Supreme Court from insisting upon strict observance of the premeditation-deliberation requirement. The Court has repeatedly reversed first-degree murder convictions in which the evidence did not support an inference of premeditation and deliberation.39

*328The real focus of first-degree murder jurisprudence in Michigan has been on the kind of evidence which permits an inference of premeditation and deliberation. To some extent this approach has minimized the need for functional definitions of premeditation and deliberation. Since the distinguishing elements of first-degree murder ultimately resolve themselves into questions of fact, minimum standards of proof, if reasonably related to the circumstances which must be proved, will serve to preserve the distinction between first-degree .and second-degree murder.

Our concern with maintaining the distinction between degrees of murder reflects a growing insistence by many courts that first-degree and second-degree murder be clearly differentiated.40 Such differentiation furthers the statutory objectives, of course. Yet it serves a more fundamental purpose by insuring that murder prosecutions do not violate fundamental due process.

First-degree and second-degree murder are separate offenses, carrying vastly different penalties, distinguished only by the requirement that a homicide punishable as first-degree murder be committed with premeditation and deliberation. If premeditation and deliberation are ill-defined, the jury is *329left with no objective standards upon which to base its verdict. Convictions of the two offenses will be distributed not on the basis of ascertainable criteria, but entirely as products of the subjective, wholly individualistic determinations of different juries.

The United States Supreme Court has frequently ruled that juries cannot be permitted to determine criminal liability without a reasonably ascertainable standard of guilt.41 Absent such standards, the jury has the sort of naked and arbitrary power42 which is inconsistent with due process.

Accordingly, it underscores the difference between the statutory degrees of murder to emphasize that premeditation and deliberation must be given independent meaning in a prosecution for first-degree murder. The ordinary meaning of the terms will suffice. To premeditate is to think about beforehand;43 to deliberate is tq measure and evaluate the major facets of a choice or problem.44 As a number of courts have pointed out, premeditation and deliberation characterize a thought process un*330disturbed by hot blood.45 While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a “second look”.46

This interpretation of premeditation and deliberation in no way departs from existing Michigan law. Time and again the Michigan Supreme Court *331has reversed convictions where the evidence of premeditation and deliberation was insufficient to warrant submission of a charge of first-degree murder to the jury. In each case, the homicide occurred during an affray whose nature would not permit cool and orderly reflection.47

To decide whether Morrin’s conviction may stand in the case before us, we must determine if the prosecution met its burden of proving premeditation and deliberation. Since these are subjective factors, usually incapable of direct proof, they may be established by inference from all the facts of the case.48 The question is whether the evidence introduced at the trial fairly supports an inference of premeditation and deliberation.

There is abundant case law on the kinds of evidence from which premeditation and deliberation may be inferred.49 Having examined the law we conclude that here there was insufficient evidence to support the requisite inference. Here there was no prior relationship between the parties that would tend to show a motive.50 The murder weapon was not acquired or positioned in preparation for homi*332cide.51 There is nothing in the record which would support an inference that Morrin transported Abell to the secluded location for an illicit or criminal purpose. The circumstances of the killing itself and the events preceding it were equivocal, as consistent with the absence as with the presence of premeditation and deliberation.52 Morrin’s conduct subsequent to the assault, while it perhaps reflected consciousness of guilt, was neither coherent nor organized enough to suggest it occupied a place in a scheme or plan deliberated and premeditated upon before the homicide.53

Morrin’s exculpatory testimony, although disbelieved by the jury, was not substantive evidence of facts inconsistent with his account.54

*333The bizarre rectal wound, which the prosecution contended had great evidentiary weight, likewise permits no inference of premeditation or deliberation before the homicide,55 particularly if, as the prosecution argued, that injury was inflicted after Abell was already dead. The infliction of a brutal or revolting wound is hardly consistent with, let alone evidence of, rational deliberative processes.56

There is language in some early cases which suggests that a killing with a deadly weapon gives rise to a presumption — or at least permits an inference — that the homicide was premeditated.57 In each of these cases, however, there was ample additional evidence of premeditation.

Where the use of a deadly weapon has been held to evidence premeditation there were other circumstances showing motive or plan which would make reasonable the inference that the use of the deadly weapon was not a spur-of-the-moment decision, but rather that it was acquired or positioned with the thought beforehand of using it to kill the victim.58 In the Michigan case of Nye v. People, supra, where *334the homicide occurred in a sudden affray and the defendant killed the victim with a knife “which he had in his pocket and which was apparently one calculated to he used as a weapon”, the absence of any testimony whatsoever to show that the killing was not a sudden impulse prompted the Court to rule that there was insufficient evidence to support a verdict of first-degree murder.

Here there is no evidence that Morrin murdered William Abell with premeditation and deliberation. There is no evidence showing that Morrin acquired or positioned the tongs — an apparently impromptu weapon — with the thought beforehand to kill Abell or that he acted after a deliberate thought process. The record, and the reasonable inferences that might he drawn from it, fail to disclose any factual basis for finding premeditation and deliberation. The issue of first-degree murder should not have been submitted to the jury.

IY.

Morrin raises several other exceptions to the trial proceedings.

First, he contends that the prosecuting attorney should not have asked him on cross-examination whether he had told his sister that he had rammed *335the tongs into Abell’s rectum after he was already dead. (Morrin denied making the alleged, statement.) He argues that since his sister did not so testify when she was examined that the prosecutor was seeking to place before the jury false innuendo. Although his sister did not testify at the trial that Morrin made such a statement, she did so testify at the preliminary examination. The question was, therefore, proper cross-examination, not impermissible innuendo.

Morrin also claims that the prosecutor misrepresented the content of certain testimony during his closing argument. Misrepresentation did take place, and we disapprove of the prosecutor’s overzealous efforts to emphasize the rectal wound. No objection or motion for a corrective instruction or mistrial was made by defense counsel, however, and therefore the issue is not preserved for review.59

Morrin further claims that the trial judge erred when he permitted the jurors to read a portion of the transcript after they had been deliberating for seven hours. The permission was granted following a request by the jurors to see testimony of Dr. Valdez, who performed the autopsy, concerning the rectal wound. All relevant testimony of Dr. Valdez was read. The applicable rule is that “to read or permit to be read testimonial excerpts is an exercise of judicial discretion. It is reviewable * * * and reversible only if there was an abuse of discretion”.60 We find no abuse here.

Morrin also objects to the admission into evidence of a photograph depicting Abell’s wounds. He contends it was inadmissible because the body had *336been removed to the morgue before the picture was taken. The general rule is that photographs of the victim may be introduced into evidence if they accurately depict what they represent and are helpful in throwing light on a material issue.61 The movement of the body did not in this case diminish the accuracy or materiality of the photograph which displayed only a portion of the body, not the place where the picture was taken. The photograph,' though not pleasant, was not gruesome.

Finally, Morrin objects to a ruling that one of his character witnesses was not qualified to testify concerning Morrin’s reputation in the community. The testimony of a character witness must be based upon what he has heard other people in the defendant’s residential or business community say about the defendant’s reputation.62 The record discloses that the witness had no basis for his testimony concerning Morrin’s reputation. The ruling does not require reversal.

y.

Having determined that the trial judge erred only by submitting the issue of first-degree murder to the jury, we turn to the disposition of this case. The jury’s verdict was an unequivocal assertion of its finding that Morrin did in fact murder William Abell. Its mistaken belief that the record permitted an inference of premeditation and deliberation does not detract from the fact that there was credible evidence to support a finding of second-degree murder.

In other first-degree murder cases, where juries have returned guilty verdicts upon evidence suf*337ficient only to prove the less aggravated second-degree crime, appellate courts have remanded for the entry of judgments of conviction of the lesser offense.63 This is, of course, permissible only where the accused person is convicted of the charged offense and it is, therefore, apparent that the verdict is not the product of compromise.64

We remand this cause to the trial court for entry of a judgment convicting Morrin of second-degree murder, and for resentencing on that conviction.

All concurred.

*281David Newbern, Justice.

This child abuse case resulted in the appellant’s conviction of first degree murder. The sole issue on appeal is whether the state’s evidence was sufficient to sustain the conviction. We hold there was no evidence of the “. . . premeditated and deliberated purpose of causing the death of another person . . .” required for conviction of first degree murder by Ark. Stat. Ann. § 41-1502(l)(b) (Repl. 1977). However, we find the evidence was sufficient to sustain a conviction of second degree murder, described in Ark. Stat. Ann. § 41-1503(l)(c) (Repl. 1977), as the appellant was shown to have caused his son’s death by delivering a blow to his abdomen or chest “. . . with the purpose of causing serious physical injury. . . .” The conviction is thus modified from one of first degree murder to one of second degree murder and affirmed.

The facts of this case are as heart-rending as any we are likely to see. The appellant is six feet two inches tall and weighs 300 pounds. His son, Ronnie Midgett, Jr., was eight years old and weighed between thirty-eight and forty-five pounds. The evidence showed that Ronnie Jr. had been abused by brutal beating over a substantial period of time. Typically, as in other child abuse cases, the bruises had been noticed by school personnel, and a school counselor as well as a SCAN worker had gone to the Midgett home to inquire. Ronnie Jr. would not say how he had obtained the bruises or why he was so lethargic at school except to blame it all, vaguely, on a rough playing little brother. He did not even complain to his siblings about the treatment he was receiving from the appellant. His mother, the wife of the appellant, was not living in the home. The other children apparently were not being physically abused by the appellant.

Ronnie Jr.’s sister, Sherry, aged ten, testified that on the Saturday preceding the Wednesday of Ronnie Jr.’s death their father, the appellant, was drinking whiskey (two to three quarts that day) and beating on Ronnie Jr. She testified that the appellant would “bundle up his fist” and hit Ronnie Jr. in the stomach and in the back. On direct examination she said that she had not previously seen the appellant beat Ronnie Jr., but she had seen the appellant choke him for no particular reason on Sunday nights after she and Ronnie Jr. returned from church. On cross-examination, Sherry testified that Ronnie Jr. had lied and her father was, on that Saturday, trying to get him to tell the truth. *282She said the bruises on Ronnie Jr.’s body noticed over the preceding six months had been caused by the appellant. She said the beating administered on the Saturday in question consisted of four blows, two to the stomach and two to the back.

On the Wednesday Ronnie Jr. died, the appellant appeared at a hospital carrying the body. He told hospital personnel something was wrong with the child. An autopsy was performed, and it showed Ronnie Jr. was a very poorly nourished and underdeveloped eight-year-old. There were recently caused bruises on the lips, center of the chest plate, and forehead as well as on the back part of the lateral chest wall, the soft tissue near the spine, and the buttocks. There was discoloration of the abdominal wall and prominent bruising on the palms of the hands. Older bruises were found on the right temple, under the chin, and on the left mandible. Recent as well as older, healed, rib fractures were found.

The conclusion of the medical examiner who performed the autopsy was that Ronnie Jr. died as the result of intra-abdominal hemorrhage caused by a blunt force trauma consistent with having been delivered by a human fist. The appellant argues that in spite of all this evidence of child abuse, there is no evidence that he killed Ronnie Jr. having premeditated and deliberated causing his death. We must agree.

It is true that premeditation and deliberation may be found on the basis of circumstantial evidence. That was the holding in House v. State, 230 Ark. 622, 324 S.W.2d 112 (1959), where the evidence showed a twenty-four-year-old man killed a nineteen-year-old woman with whom he was attempting to have sexual intercourse. The evidence showed a protracted fight after which the appellant dumped the body in a water-filled ditch not knowing, according to House’s testimony, whether she was dead or alive. Although it is not spelled out, presumably the rationale of the opinion was that Hoiise had time to premeditate during the fight and there was substantial evidence he intended the death of the victim when he left her in the water. Our only citation of authority on the point of showing premeditation and deliberation by circumstantial evidence in that case was Weldon v. State, 168 Ark. 534, 270 S.W. 968 (1925), where we said:

The very manner in which the deadly weapons were used *283was sufficient to justify the jury in finding that whoever killed Jones used the weapons with a deliberate purpose to kill. Jones’ body was perforated three times through the center with bullets from a pistol or rifle, and was also horribly mutilated with a knife. The manner, therefore, in which these deadly weapons were used tended to show that the death of Jones was the result of premeditation and deliberation.

While a fist may be a deadly weapon, the evidence of the use of the fist in this case is not comparable to the evidence in House v. State, supra, and Weldon v. State, supra, where there was some substantial evidence consisting of other circumstances that the appellant who dumped the apparently immobile body in the water and walked away and the appellant who wielded the deadly weapons intended and premeditated that death occur. Nor do we have in this case evidence of any remark made or other demonstration that the appellant was abusing his son in the hope that he eventually would die.

The annotation at 89 A.L.R. 2d 396 (1963) deals with the subject of crimes resulting from excessive punishment of children. While some of the cases cited are ones in which a parent or step-parent flew into a one-time rage and killed the child, others are plain child abuse syndrome cases like the one before us now. None of them, with one exception, resulted in affirmance of a first degree murder conviction. Several were decisions in which first degree murder convictions were set aside for lack of evidence of premeditation and deliberation. See, e.g., People v. Ingraham, 232 N.Y. 245, 133 N.E. 575 (1921); Pannill v. Commonwealth, 185 Va. 244, 38 S.W.2d 457 (1946). The case cited in the annotation in which a first degree murder conviction was affirmed is Morris v. State, 270 Ind. 245, 384 N.E.2d 1022 (1979). There the appellant was left alone for about fifteen minutes with his five-month-old baby. When the child’s mother returned to their home she found the baby had been burned severely on one side. About a month later, the appellant and his wife were engaged in an argument when the baby began to whine. The appellant laid the baby on the floor, began hitting the baby in the face and then hit the baby’s head on the floor, causing the baby’s death. At the time of the offense, the Indiana law required malice, purpose, and premeditation to convict of first degree murder. In discussing the *284premeditation requirement, the court said only:

Premeditation which also may be inferred from the facts and circumstances surrounding the killing, need not long be deliberated upon, but may occur merely an instant before the act. [Citation omitted.] It is clear from the facts adduced at trial regarding the burning and beating of the child that the jury could well have inferred that his killing was perpetrated purposely and with premeditated malice. [384 N.E.2d at 1024]

No explanation is given for the quantum leap from “the facts,” horrible as they were, to the inference of premeditation. We made the same error in Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985), another child abuse case in which the facts were particularly repugnant, where we said:

Premeditation, deliberation and intent may be inferred from the circumstances of the case, such as the weapon used and the nature, extent and location of the wounds inflicted . . . . [T]he weapon used was a fist which struck the abdomen with such force as to rupture the colon. The child sustained fingernail scratches, four broken ribs, and other internal damage, as well as numerous bruises due to blows with a fist all over his body. The required mental state for first degree murder can be inferred from the evidence of abuse, which is substantial. [287 Ark. at 162-163, 697 S.W.2d at 98]

The problem with these cases is that they give no reason, like the reasons found in House v. State, supra, and Weldon v. State, supra, to make the inference of premeditation and deliberation.

In Simmons v. State, 227 Ark. 1109, 305 S.W.2d 119 (1957), the appellant was antagonized more than once by his victims. After the first time he went home and got his shotgun to use, he said, for hunting squirrels. We modified the conviction from first degree murder to second degree murder, noting that the appellant had opportunities to kill the victims after he had obtained his weapon but before he shot them. His having let those opportunities pass negated premeditation and deliberation. We said:

There is no testimony of any witness, aside from the *285testimony of appellant in open court and his written confession, from which the jury could have found the existence of premeditation and deliberation. Neither do we find any circumstance which amounts to substantial evidence upon which a finding of premeditation and deliberation could be based. Consequently we are led to conclude that the jury must have resorted to speculation rather than substantial evidence in arriving at a verdict of murder in the first degree. [227 Ark. at 110-111, 305 S.W.2d at 120]

The appellant argues, and we must agree, that in a case of child abuse of long duration the jury could well infer that the perpetrator comes not to expect death of the child from his action, but rather that the child will live so that the abuse may be administered again and again. Had the appellant planned his son’s death, he could have accomplished it in a previous beating.

In this case the evidence might possibly support the inference that the blows which proved fatal to Ronnie Jr. could have been struck with the intent to cause his death developed in a drunken, misguided, and overheated attempt at disciplining him for not having told the truth. Even if we were to conclude there was substantial evidence from which the jury could fairly have found the appellant intended to cause Ronnie Jr.’s death in a drunken disciplinary beating on that Saturday, there would still be no evidence whatever of a premeditated and deliberated killing.

In Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. den. 459 U.S. 1022 (1980), we held that to show the appellant acted with a premeditated and deliberated purpose, the state must prove that he (1) had the conscious object to cause death, (2) formed that intention before acting, and (3) weighed in his mind the consequences of a course of conduct, as distinguished from acting upon sudden impulse without the exercise of reasoning power. Viewing the evidence most favorable to the appellee, the circumstances of this case are not substantial evidence the appellant did (2) and (3), as opposed to acting on impulse or with no conscious object of causing death. The jury was thus forced to resort to speculation on these important elements.

A clear exposition of the premeditation and deliberation requirement which separates first degree from second degree *286murder is found in 2 W. LaFave and A. Scott, Jr., Substantive Criminal Law § 7.7 (1986):

Almost all American jurisdictions which divide murder into degrees include the following two murder situations in the category of first degree murder: (1) intent-to-kill murder where there exists (in addition to the intent to kill) the elements of premeditation and deliberation, and (2) felony murder where the felony in question is one of five or six listed felonies, generally including rape, robbery, kidnapping, arson and burglary. Some states instead or in addition have other kinds of first degree murder.

(a) Premeditated, Deliberate, Intentional Killing. To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words “premeditate” and “deliberate” as they are used in connection with first degree murder. Perhaps the best that can be said of “deliberation” is that it requires a cool mind that is capable of reflection, and of “premeditation” that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.

It is often said that premeditation and deliberation require only a “brief moment of thought” or a “matter of seconds,” and convictions for first degree murder have frequently been affirmed where such short periods of time were involved. The better view, however, is that to “speak of premeditation and deliberation which are instantaneous, or which take no appreciable time,. . . destroys the statutory distinction between first and second degree murder,” and (in much the same fashion that the felony-murder rule is being increasingly limited) this view is growing in popularity. This is not to say, however, that premeditation and deliberation cannot exist when the act of killing follows immediately after the formation of the intent. The intention may be finally formed only as a conclusion of prior premeditation and deliberation, while in other cases the intention may be formed without prior thought so that premeditation and deliberation occurs only *287with the passage of additional time for “further thought, and a turning over in the mind.” [Footnotes omitted.]

The evidence in this case supports only the conclusion that the appellant intended not to kill his son but to further abuse him or that his intent, if it was to kill the child, was developed in a drunken, heated, rage while disciplining the child. Neither of those supports a finding of premeditation or deliberation.

Perhaps because they wish to punish more severely child abusers who kill their children, other states’ legislatures have created laws permitting them to go beyond second degree murder. For example, Illinois has made aggravated battery one of the felonies qualifying for “felony murder,” and a child abuser can be convicted of murder if the child dies as a result of aggravated battery. See People v. Ray, 399 N.E.2d 977 (Ill. App. 1979). Georgia makes “cruelty to children” a felony, and homicide in the course of cruelty to children is “felony murder.” See Bethea v. State, 304 S.E. 2d 713 (Ga. 1983). Idaho has made murder by torture a first degree offense, regardless of intent of the perpetrator to kill the victim, and the offense is punishable by the death penalty. See State v. Stuart, 715 P.2d 833 (Idaho 1985). California has also adopted a murder by torture statute making the offense murder in the first degree without regard to the intent to kill. See People v. Demond, 59 Cal. App. 3d 574, 130 Cal.Rptr. 590 (1976). Cf People v. Steger, 128 Cal. Rptr. 161, 546 P.2d 665 (1976), in which the California Supreme Court held that the person accused of torture murder in the first degree must be shown to have had a premeditated intent to inflict extreme and prolonged pain in order to be convicted.

All of this goes to show that there remains a difference between first and second degree murder, not only under our statute, but generally. Unless our law is changed to permit conviction of first degree murder for something like child abuse or torture resulting in death, our duty is to give those accused of first degree murder the benefit of the requirement that they be shown by substantial evidence to have premeditated and deliberated the killing, no matter how heinous the facts may otherwise be. We understand and appreciate the state’s citation of Burnett v. State, supra, but, to the extent it is inconsistent with this opinion, we must overrule it.

*288The dissenting opinion begins by stating the majority concludes that one who starves and beats a child to death cannot be convicted of murder. That is not so, as we are affirming the conviction of murder; we are, however, reducing it to second degree murder. The dissenting opinion’s conclusion that the appellant starved Ronnie Jr., must be based solely on the child’s underdeveloped condition which could, presumably, have been caused by any number of physical malfunctions. There is no evidence the appellant starved the child. The dissenting opinion says it is for the jury to determine the degree of murder of which the appellant is guilty. That is true so long as there is substantial evidence to support the jury’s choice. The point of this opinion is to note that there was no evidence of premeditation or deliberation which are required elements of the crime of first degree murder. The dissenting opinion cites two child abuse cases in which first degree murder convictions have been affirmed. One is Morris v. State, supra, with which we dealt earlier in this opinion. The other, is Lindsey v. State, 501 S.W.2d 647 (Tex. Crim. App. 1973), in which the opinion does not say the conviction was for first degree murder. In fact, the issue there was whether the killing occurred with “intent and malice” which are obviously not the same as premeditation and deliberation.

In this case we have no difficulty with reducing the sentence to the maximum for second degree murder. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). The jury gave the appellant a sentence of forty years imprisonment which was the maximum for first degree murder, and we reduce that to twenty years which is the maximum imprisonment for second degree murder. Just as walking away from the victim in the water-filled ditch in House v. State, supra, after a protracted fight, and the “overkill” and mutilation of the body in Weldon v. State, supra, were circumstances creating substantial evidence of premeditation and deliberation, the obvious effect the beatings were having on Ronnie Jr. and his emaciated condition when the final beating occurred are circumstances constituting substantial evidence that the appellant’s purpose was to cause serious physical injury, and that he caused his death in the process. That is second degree murder, § 41-1503(l)(c). Therefore, we reduce the appellant’s sentence to imprisonment for twenty years.

Affirmed as modified.

*289Hickman, Hays, and Glaze, JJ., dissent.

Darrell Hickman, Justice,

dissenting. Simply put, if a parent deliberately starves and beats a child to death, he cannot be convicted of the child’s murder. In reaching this decision, the majority overrules a previous unanimous decision and substitutes its judgment for that of the jury. The majority has decided it cannot come to grips with the question of the battered child who dies as a result of deliberate, methodical, intentional and severe abuse. A death caused by such acts is murder by any legal standard, and that fact cannot be changed—not even by the majority. The degree of murder committed is for the jury to decide—not us.

Convictions for murder resulting from child abuse have become more common in our courts. That is probably because such cases are being reported more often and prosecutors are more apt to seek retribution.

The decision of what charge to file in a homicide case rests with the prosecuting attorney. He has the duty to prove the charge. The decision of whether the state has proved the crime rests with the jury. Our role is only to determine if substantial evidence exists to support the verdict.

Sometimes the facts may warrant a charge of second degree murder. We have affirmed convictions for second degree murder in two such cases. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984); Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978).

Whether the particular acts of child abuse amount to first degree murder depend on the particular facts and circumstances in each case. Just as in any other murder case, the state must prove each element of the crime. For a first degree murder conviction, the state must prove premeditation and deliberation.

We have never held motive relevant to murder, nor do we even try to look into the warped minds that commit murder to make their acts rational. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986). Consequently, circumstantial evidence usually plays a strong part in determining intent in any murder case.

In this case the majority, with clairvoyance, decides that this parent did not intend to kill his child, but rather to keep him alive *290for further abuse. This is not a child neglect case. The state proved Midgett starved the boy, choked him, and struck him several times in the stomach and back. The jury could easily conclude that such repeated treatment was intended to kill the child.

In Burnett v. State, supra, the state chose to seek a first degree murder conviction. The child was killed in an extremely horrible way. He was malnourished and dehydrated, bruises on his face and upper and lower extremities, four broken ribs, a ruptured colon, and abrasions. His life was made intolerable and insufferable until at last a blow killed him. The parents, who could not have been unaware or innocent, were found guilty of killing him, which they did. We unanimously upheld that jury verdict. It was no “quantum leap” on our part (whatever that means), just a decision based on the facts and the law. The majority unanimously joined in the Burnett decision.

The facts in this case are substantial to support a first degree murder conviction. The defendant was in charge of three small children. The victim was eight years old and had been starved; he weighed only 38 pounds at the time of his death. He had multiple bruises and abrasions. The cause of death was an internal hemorrhage due to blunt force trauma. His body was black and blue from repeated blows. The victim’s sister testified she saw the defendant, a 30 year old man, 6’2” tall, weighing 300 pounds, repeatedly strike the victim in the stomach and back with his fist. One time he choked the child.

The majority is saying that as a matter of law a parent cannot be guilty of intentionally killing a child by such deliberate acts. Why not? Is it because it is inconceivable to rational people that a parent would intend to kill his own child? Evidently, this is the majority’s conclusion, because they hold the intention of Midgett was to keep him alive for further abuse, not kill him. How does the majority know that? How do we ever know the actual or subliminal intent of a defendant? “If the act appellant intended was criminal, then the law holds him accountable, even though such result was not intended.” Hankins v. State, 206 Ark. 881, 178 S.W.2d 56 (1944); see also Black v. State, 215 Ark. 618, 222 S.W.2d 816 (1949). There is no difference so far as the law is concerned in this case than in any other murder case. It is simply a question of proof. This parent killed his own child, and the *291majority cannot accept the fact that he intended to do just that.

Undoubtedly, the majority could accept it if the child were murdered with a bullet or a knife; but they cannot accept the fact, and it is a fact, that this defendant beat and starved his own child to death. His course of conduct could not have been negligent or unintentional.

Other states have not hesitated to uphold a conviction for first degree murder in such cases. Morris v. State, 384 N.E.2d 1022 (Ind. 1979); Lindsey v. State, 501 S.W.2d 647 (Tex. 1973). The fact that some states (California and Idaho) have passed a murder by torture statute is irrelevant. Those statutes may make it easier to prosecute child murderers, but they do not replace or intend to replace the law of murder. Whether murder exists is a question of the facts—not the method. The majority spends a good deal of effort laboring over the words “premeditation and deliberation,” ignoring what the defendant did. Oliver Wendell Holmes said: “We must think things not words . . .” Holmes, “Law in Science and Science in Law,” Collected Legal Papers, p. 238 (1921). If what Midgett did was deliberate and intentional, and that is not disputed, and he killed the child, a jury can find first degree murder.

I cannot fathom how this father could have done what he did; but it is not my place to sit in judgment of his mental state, nor allow my human feelings to color my judgment of his accountability to the law. The law has an objective standard of accountability for all who take human life. If one does certain acts and the result is murder, one must pay. The jury found Midgett guilty and, according to the law, there is substantial evidence to support that verdict. That should end the matter for us. He is guilty of first degree murder in the eyes of the law. His moral crime as a father is another matter, and it is not for us to speculate why he did it.

I would affirm the judgment.

Hays and Glaze, JJ., join in the dissent.

*291-ASupplemental Opinion on Denial of Rehearing

June 29, 1987

731 S.W.2d 774

1. Appeal & error — no basis for granting rehearing. — Where appellant only reargues a question raised on appeal he presents no basis for granting rehearing. [Ark. Sup. Ct. R. 20(g).]

2. Criminal law — first degree murder. — Ark. Stat. Ann. § 41-1502(3) (Supp. 1985) provides that first degree murder is a class Y felony, and a person convicted of a class Y felony may be sentenced to a term of not less than ten years and not more than forty years, or life.

3. Appeal & error — insufficient proof to support jury’s VERDICT OF A HIGHER OFFENSE — APPELLATE COURT MAY REDUCE sentence. — If the evidence proves insufficient to support a jury’s verdict of a higher offense, the trial court may sentence the defendant for a lesser included offense where the evidence clearly shows the commission of the latter and the appellate court, in its discretion, may reduce the sentence to that prescribed for the lesser offense.

Petition for Rehearing; denied.

David Newbern, Justice.

The appellant only reargues the question whether there was evidence of premeditation and deliberation and thus presents no basis for granting rehearing. Arkansas Supreme Court and Court of Appeals Rule 20(g). However, both parties have pointed out an error of law in our opinion. We stated that the maximum sentence for first degree murder is forty years imprisonment. We should have said the maximum term of years is forty. The statute provides first degree murder is a class Y felony, Ark. Stat. Ann. § 41-1502(3) (Supp. 1985), and a person convicted of a class Y felony may be sentenced to a term of not less than ten years and not more than forty years, or life. The jury thus sentenced the appellant to the maximum determinate sentence for first degree murder, although it was not the ultimate maximum sentence, i.e., life imprisonment.

The appellant argues, in his response to the appellee’s request for rehearing, that we should grant a new trial so that a jury may set the sentence for second degree murder. We decline to do so, as we regard the maximum sentence to be supported by the evidence in the record, and as we said in Collins v. State, 261

*291-BArk. 195, 548 S.W.2d 106 (1977):

If the evidence proves insufficient to support a jury’s verdict of a higher offense, the trial court may sentence the defendant for a lesser included offense where the evidence clearly shows the commission of the latter (and this court, in its discretion, may reduce the sentence to that prescribed for the lesser offense). Caton v. State, 252 Ark. 420, 479 S.W.2d 537 [1972]. This rule applies in murder cases as well as for other felonies. Simpson v. State, 56 Ark. 8, 19 S.W. 99 [1892]. [261 Ark. at 209, 548 S.W.2d at 114.]

The sentence has been reduced to one within the range prescribed for second degree murder, and we find that sentence to be justified by the evidence in the record.

Rehearing denied.

Hickman, Hays, and Glaze, JJ., would grant.

MEYER, Justice.

Defendant was convicted of the first-degree murder of his father, Clyde Forrest. The State having stipulated before trial to the absence of any statutory aggravating factors under N.C.G.S. § 15A-2000, the case was tried as a noncapital case, and defendant was sentenced accordingly to life imprisonment. In his appeal to this Court, defendant brings forward three assignments of error relative to the guilt-innocence phase of his trial. Having considered the entire record and each of these assignments in turn, we find no error in defendant’s trial. We therefore leave undisturbed defendant’s conviction and life sentence.

The facts of this case are essentially uncontested, and the evidence presented at trial tended to show the following series of events. On 22 December 1985, defendant John Forrest admitted his critically ill father, Clyde Forrest, Sr., to Moore Memorial Hospital. Defendant’s father, who had previously been hospitalized, was suffering from numerous serious ailments, including severe heart disease, hypertension, a thoracic aneurysm, numerous pulmonary emboli, and a peptic ulcer. By the morning of 23 December 1985, his medical condition was determined to be unbeatable and terminal. Accordingly, he was classified as “No Code,” meaning that no extraordinary measures would be used to save his life, and he was moved to a more comfortable room.

On 24 December 1985, defendant went to the hospital to visit his ailing father. No other family members were present in his father’s room when he arrived. While one of the nurse’s assistants was tending to his father, defendant told her, “There is no need in doing that. He’s dying.” She responded, “Well, I think he’s better.” The nurse’s assistant noticed that defendant was sniffing as though crying and that he kept his hand in his pocket during their conversation. She subsequently went to get the nurse.

When the nurse’s assistant returned with the nurse, defendant once again stated his belief that his father was dying. The *189nurse tried to comfort defendant, telling him, “I don’t think your father is as sick as you think he is.” Defendant, very upset, responded, “Go to hell. I’ve been taking care of him for years. I’ll take care of him.” Defendant was then left alone in the room with his father.

Alone at his father’s bedside, defendant began to cry and to tell his father how much he loved him. His father began to cough, emitting a gurgling and rattling noise. Extremely upset, defendant pulled a small pistol from his pants pocket, put it to his father’s temple, and fired. He subsequently fired three more times and walked out into the hospital corridor, dropping the gun to the floor just outside his father’s room.

Following the shooting, defendant, who was crying and upset, neither ran nor threatened anyone. Moreover, he never denied shooting his father and talked openly with law enforcement officials. Specifically, defendant made the following oral statements: “You can’t do anything to him now. He’s out of his suffering.” “I killed my daddy.” “He won’t have to suffer anymore.” “I know they can burn me for it, but my dad will not have to suffer anymore.” “I know the doctors couldn’t do it, but I could.” “I promised my dad I wouldn’t let him suffer.”

Defendant’s father was found in his hospital bed, with several raised spots and blood on the right side of his head. Blood and brain tissue were found on the bed, the floor, and the wall. Though defendant’s father had been near death as a result of his medical condition, the exact cause of the deceased’s death was determined to be the four point-blank bullet wounds to his head. Defendant’s pistol was a single-action .22-calibre five-shot revolver. The weapon, which had to be cocked each time it was fired, contained four empty shells and one live round.

At the close of the evidence, defendant’s case was submitted to the jury for one of four possible verdicts: first-degree murder, second-degree murder, voluntary manslaughter, or not guilty. After a lengthy deliberation, the jury found defendant guilty of first-degree murder. Judge Cornelius accordingly sentenced defendant to the mandatory life term.

Defendant assigns three specific errors relative to his conviction at trial: first, that the trial court committed reversible error *190in its instruction to the jury concerning the issue of malice; second, that the trial court committed reversible error in its submission of the first-degree murder charge to the jury because there was insufficient evidence of premeditation and deliberation; third and finally, that the trial court committed reversible error when, during jury deliberation, it inquired into the jury’s numerical division and subsequently instructed the jury about deliberating toward a verdict. We deal with each assignment of error in turn.

I.

[1] In his first assignment of error, defendant asserts that the trial court committed reversible error in its instruction to the jury concerning the issue of malice. Defendant makes three specific arguments in support of his position on this assignment of error. First, states defendant, the instruction permitting an inference of malice from the use of a deadly weapon on these particular facts constituted an impermissible shift of the burden of persuasion on the issue of malice to defendant. Second, continues defendant, the trial court erred in giving incomplete instructions on the element of malice and in thereby improperly suggesting that the mitigating evidence presented at trial neither negated malice nor showed heat of passion. Third, concludes defendant, the trial court erred more generally in giving instructions on malice which were simply erroneous and misleading. We find each of defendant’s arguments unpersuasive, and we therefore overrule this assignment of error.

On the issue of malice, the trial court consistently instructed the jury as follows:

Malice means not only hatred, ill-will or spite, as it is ordinarily understood; to be sure that’s malice. But it also means that condition of the mind that prompts a person to take the life of another intentionally, or to intentionally inflict serious bodily harm which proximately results in his death without just cause, excuse or justification.

If the State proves beyond a reasonable doubt that the defendant killed the victim with a deadly weapon, or intentionally inflicted a wound upon the victim with a deadly weapon that proximatley [sic] caused the victim’s death you may infer, first, that the killing was unlawful. Second, that it *191was done with malice. But you are not compelled to do so. You may consider this, along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.

I charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death. But you may consider such belief in determining whether the killing was done with malice.

It is this instruction to which defendant now assigns error.

Defendant first argues that, on the particular facts of this case, the trial court’s instruction permitting an inference of malice from the use of a deadly weapon improperly shifted the burden of persuasion on the issue of malice to defendant. Here, claims defendant, where the facts presented tended to show a distraught son who wanted merely to end his father’s suffering, the evidence in fact negated the element of malice. According to defendant, there was no rational connection here between the fact proved (intentional use of a dangerous weapon) and the fact inferred (malice). Therefore, concludes defendant, use of an inference under these circumstances was tantamount to shifting the burden of persuasion to defendant, because first, the jury was encouraged to draw the inference regardless of any other evidence presented, and second, it was told, in effect, that the inference could not be overcome — that the direct evidence was not a “legal defense.” We cannot agree.

The instruction employed by the trial court is in accord with the North Carolina Pattern Jury Instructions and with extensive North Carolina case law. See State v. Reynolds, 307 N.C. 184, 297 S.E. 2d 532 (1983); State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604 (1979). Significantly, the trial court did not instruct the jury that malice should be presumed. On the contrary, the trial court instructed the jury that it “may infer” that the killing was unlawful and committed with malice, but that it was not compelled to do so. The trial court properly instructed the jury that it should consider this permissive inference along with all the other facts and circumstances, including defendant’s belief that his father was terminally ill or in danger of immediate death, in *192deciding whether the State had proven malice beyond a reasonable doubt. Defendant’s first argument therefore lacks merit.

[2] Defendant argues second that the trial court erred in giving incomplete instructions on the issue of malice, thereby improperly suggesting that any mitigating evidence presented did not negate malice or show heat of passion. While conceding that the instruction here was technically correct, defendant claims that it was nevertheless inadequate and misleading in that it failed to define what was meant by the phrase “just cause, excuse or justification.” According to defendant, there is abundant evidence in the record that, upon seeing his father at the hospital, he was overwhelmed by the futile, horrible suffering before him and that, in a highly emotional state, he killed to bring relief to the man he deeply loved. The jury instruction employed by the trial court, concludes defendant, because it did not instruct on heat of passion, for all intents and purposes precluded the jury from considering these critical facts in mitigation of the offense. We do not agree with defendant, and we hold that a heat of passion jury instruction on facts such as those of the case at bar is improper.

In essence, defendant asks this Court to hold that his extreme distress over his father’s suffering was adequate provocation, as in the “heat of passion” doctrine, to negate the malice element required for a murder conviction. Our Court has held on numerous occasions that, under certain circumstances, one who kills another human being in the “heat of passion,” produced by adequate provocation sufficient to negate malice, is guilty of manslaughter rather than murder. State v. Robbins, 309 N.C. 771, 309 S.E. 2d 188 (1983); State v. Jones, 299 N.C. 103, 261 S.E. 2d 1 (1979). A killing in the “heat of passion” on sudden and adequate provocation means a killing without premeditation under the influence of a sudden passion which renders the mind incapable of cool reflection. State v. Jones, 299 N.C. 103, 261 S.E. 2d 1; State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447 (1970).

Significantly, our Court has narrowly construed the requirement under the “heat of passion” doctrine that provocation be adequate and reasonable. We have held, for example, that mere words or insulting language, no matter how abusive, can never be adequate provocation and can never reduce murder to manslaughter under the “heat of passion” doctrine. State v. McCray, 312 *193N.C. 519, 324 S.E. 2d 606 (1985); State v. Montague, 298 N.C. 752, 259 S.E. 2d 899 (1979). We have held as adequate provocation an assault or threatened assault, State v. Montague, 298 N.C. 752, 259 S.E. 2d 899; State v. Williams, 296 N.C. 693, 252 S.E. 2d 739 (1979), and the discovery of the deceased spouse and a paramour in the act of intercourse, State v. Ward, 286 N.C. 304, 210 S.E. 2d 407, vacated in part 428 U.S. 903, 49 L.Ed. 2d 1207 (1974).

We are unwilling to hold that, as in the case at bar, where defendant kills a loved one in order to end the deceased’s suffering, adequate provocation to negate malice is necessarily present. The “heat of passion” doctrine is meant to reduce murder to manslaughter when defendant kills without premeditation and deliberation and without malice, but rather under the influence of the heat of passion suddenly aroused which renders the mind temporarily incapable of cool reflection. State v. Jones, 299 N.C. 103, 261 S.E. 2d 1. Here, irrefutable proof of premeditation and deliberation is clearly present. This defendant, though clearly upset by his father’s condition, indicated by his actions and his statements that his crime was premeditated and deliberate.

The instruction employed by the trial court was correct, and we reject this second of defendant’s arguments that the jury instructions constitute reversible error.

[3] Defendant argues third that the trial court committed reversible error in giving instructions on the issue of malice which were erroneous and generally misleading. Defendant’s objection here is essentially a grammatical one and is directed at that portion of the jury instruction which reads as follows:

[Malice] also means that condition of the mind that prompts a person to take the life of another intentionally, . . . without just cause, excuse or justification.

The trial court, argues defendant, failed to explicitly and specifically qualify the particular definition of malice as “that condition of the mind that prompts a person to take the life of another intentionally” with the important phrase “without just cause, excuse or justification.” This, claims defendant, almost certainly led the jury to conclude that the intentional shooting alone required them to find malice, despite any evidence to the contrary. The *194trial court, adds defendant, should have defined malice in its instruction as follows:

That condition of the mind which prompts a person, without just cause, excuse or justification to take the life of another intentionally

or

to intentionally inflict serious bodily harm which proximately results in his death.

We do not agree, and we therefore decline defendant’s invitation to adopt a new jury instruction concerning the issue of malice. The instruction employed by the trial court is consistent with the North Carolina Pattern Jury Instructions and is the very instruction we have previously expressly approved on numerous occasions. State v. Reynolds, 307 N.C. 184, 297 S.E. 2d 532; State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604. Moreover, the instruction used at trial is, on its face, in essence the same as that for which defendant argues. Defendant’s third argument in support of this assignment of error is without merit, and the assignment as a whole is hereby overruled.

II.

[4] In his second assignment of error, defendant asserts that the trial court committed reversible error in denying his motion for directed verdict as to the first-degree murder charge. Specifically, defendant argues that the trial court’s submission of the first-degree murder charge was improper because there was insufficient evidence of premeditation and deliberation presented at trial. We do not agree, and we therefore overrule defendant’s assignment of error.

We recently addressed this very issue in the case of State v. Jackson, 317 N.C. 1, 343 S.E. 2d 814 (1986). Our analysis of the relevant law in that case is instructive in the case at bar:

Before the issue of a defendant’s guilt may be submitted to the jury, the trial court must be satisfied that substantial evidence has been introduced tending to prove each essential element of the offense charged and that the defendant was the perpetrator. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837 (1984); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980). *195Substantial evidence must be existing and real, but need not exclude every reasonable hypothesis of innocence. State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 177, reh’g denied, 464 U.S. 1004, 78 L.Ed. 2d 704 (1983). In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and inference to be drawn therefrom. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837; State v. Bright, 301 N.C. 243, 271 S.E. 2d 368 (1980). Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808 (1985); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114.

First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. State v. Fleming, 296 N.C. 559, 251 S.E. 2d 430 (1979); N.C.G.S. § 14-17 (1981 and Cum. Supp. 1985). Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808; State v. Myers, 299 N.C. 671, 263 S.E. 2d 768 (1980). Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837; State v. Bush, 307 N.C. 152, 297 S.E. 2d 563 (1982). The phrase “cool state of blood” means that the defendant’s anger or emotion must not have been such as to overcome his reason. State v. Myers, 299 N.C. 671, 263 S.E. 2d 768.

Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. State v. Buchanan, 287 N.C. 408, 215 S.E. 2d 80 (1975). Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the *196defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808; State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 117, reh’g denied, 464 U.S. 1004, 78 L.Ed. 2d 704. We have also held that the nature and number of the victim’s wounds is a circumstance from which premeditation and deliberation can be inferred. State v. Bullard, 312 N.C. 129, 322 S.E. 2d 370 (1984); State v. Brown, 306 N.C. 151, 293 S.E. 2d 569, cert. denied, 459 U.S. 1080, 74 L.Ed. 2d 642 (1982).

Jackson, 317 N.C. at 22-23, 343 S.E. 2d at 827.

As in Jackson, we hold in the present case that there was substantial evidence that the killing was premeditated and deliberate and that the trial court did not err in submitting to the jury the question of defendant’s guilt of first-degree murder based upon premeditation and deliberation. Here, many of the circumstances that we have held to establish a factual basis for a finding of premeditation and deliberation are present. It is clear, for example, that the seriously ill deceased did nothing to provoke defendant’s action. Moreover, the deceased was lying helpless in a hospital bed when defendant shot him four separate times. In addition, defendant’s revolver was a five-shot single-action gun which had to be cocked each time before it could be fired. Interestingly, although defendant testified that he always carried the gun in his job as a truck driver, he was not working on the day in question but carried the gun to the hospital nonetheless.

Most persuasive of all on the issue of premeditation and deliberation, however, are defendant’s own statements following the incident. Among other things, defendant stated that he had thought about putting his father out of his misery because he knew he was suffering. He stated further that he had promised his father that he would not let him suffer and that, though he did not think he could do it, he just could not stand to see his father suffer any more. These statements, together with the other circumstances mentioned above, make it clear that the trial court did not err in submitting to the jury the issue of first-*197degree murder based upon premeditation and deliberation. Accordingly, defendant’s second assignment of error is overruled.

III.

[5] In his third assignment of error, defendant asserts that the trial court committed reversible error when it inquired into the numerical division of the deliberating jury and when it subsequently instructed the jury about deliberating toward a verdict. Defendant claims that the trial court’s actions taken in context were sufficiently coercive of the jury as to deny him a fair trial. We have recently addressed this very issue in a similar case, and we simply do not agree.

During its deliberation at trial, the jury returned to the courtroom on several occasions with a specific question. On one such occasion, the exchange between the trial court and the jury proceeded as follows:

[COURT]: Mrs. Kelly, as Foreperson of the jury, you have submitted a question to the Court. You have indicated that you are unable at this time to come to a unanimous decision. You would like the Court to advise you. Is that your question?

Foreperson: Yes, sir.

COURT: Listen very carefully to what I ask you. I’m going to ask you the numerical division. I don’t want you to tell me which way; just tell me the division numberwise the way the jury is now constituted.

FOREPERSON: You mean in numbers?

COURT: Yes, ma’m [sic].

FOREPERSON: Eleven to one.

COURT: And has that number remained the same throughout the proceedings, or has it shifted from time to time?

FOREPERSON: No, sir. It has been constant.

COURT: Members of the jury, your Foreperson has indicated that you’ve been unable to reach a verdict at this particular point. The Court wants to emphasize the fact that it is your duty to do whatever you can to reach a verdict *198in this matter. You should reason the matter over together as reasonable men and women and to reconcile your differences if you can without the surrendering of your conscientious convictions. But no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of a fellow juror, or for the mere purpose of returning a verdict. The Court will now let. you return to the jury room to continue with your deliberations, and when you’ve reached a unanimous verdict — please see if you can reach a unanimous verdict. If you can please knock on the door.

It was this inquiry and instruction by the trial court to which defendant now assigns error.

The disposition of defendant’s assignment of error is controlled by our recent decision in the very similar case of State v. Bussey, 321 N.C. 92, 361 S.E. 2d 564 (1987). There, as here, defendant challenged the trial court’s inquiry into the numerical division of the deliberating jury and its instruction concerning deliberating further toward a verdict. In Bussey, we reaffirmed our holding in State v. Fowler, 312 N.C. 304, 322 S.E. 2d 389 (1984), that such cases are to be decided by employing a totality of the circumstances test. Bussey, 321 N.C. 92, 361 S.E. 2d 564. Therefore, the proper analysis here is whether, upon consideration of the totality of the circumstances, the inquiry and instruction of the trial court were unduly coercive.

As in Bussey, we hold here that, when viewed in the totality of the circumstances, the challenged inquiry and instruction were not coercive of the jury’s verdict. Our exact analysis in Bussey is appropriate in the case at bar as well:

The record shows that the presiding judge made it perfectly clear from the outset that he did not wish to be told whether the majority favored guilt or innocence. He was at all times respectful of the jury, never impugning its efforts or threatening it with being held for unreasonable periods of time to accomplish a unanimous verdict. The judge was confronted with a report of deadlock .... He properly exercised his discretion to hold the jurors to their duty to deliberate thoroughly together before concluding that they were indeed unable to agree. The judge’s additional instructions in re*199sponse to the first inquiry of the jury hew closely to the language of N.C.G.S. § 15A-1235. They are notable for the balance he achieved between recalling the jurors to their duty to deliberate fully and reminding them that their duty also required them to stand fast for their convictions after full reflection. Nor is there the slightest reference in his remarks to burdens on the administration of justice, to wasted court resources, or to the necessity of empanelling another jury in the event of a mistrial. The trial judge’s instructions and remarks were well within the rules established in State v. Fowler, 312 N.C. 304, 322 S.E. 2d 389, and State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978).

Id. at 97, 361 S.E. 2d at 567.

In oral argument, defendant placed particular emphasis upon the final two sentences of the trial court’s instruction to the jury, claiming that this amounted to pleading by the court that the jury reach a verdict. Specifically, the court concluded its instruction to the jury as follows:

The Court will now let you return to the jury room to continue with your deliberations, and when you’ve reached a unanimous verdict — please see if you can reach a unanimous verdict. If you can please knock on the door.

Assuming, arguendo, as defendant argues, that these two sentences, if taken out of context, might be considered of questionable propriety, we find that, in the context of the court’s total instruction and, in particular, of its admonishment to the jury that no juror should surrender any conscientious convictions, this passage is not coercive and does not constitute error in the court’s instructions.

In conclusion, having reviewed the record and each of defendant’s assignments of error, we find that defendant had a fair trial, free of prejudicial error. Accordingly, we leave undisturbed defendant’s conviction of the first-degree murder of Clyde Forrest and his sentence of life imprisonment.

No error.

*200Chief Justice Exum

dissenting.

Almost all would agree that someone who kills because of a desire to end a loved one’s physical suffering caused by an illness which is both terminal and incurable should not be deemed in law as culpable and deserving of the same punishment as one who kills because of unmitigated spite, hatred or ill will. Yet the Court’s decision in this case essentially says there is no legal distinction between the two kinds of killing. Our law of homicide should not be so roughly hewn as to be incapable of recognizing the difference. I believe there are legal principles which, when properly applied, draw the desirable distinction and that both the trial court and this Court have failed to recognize and apply them.

The difference, legally, between the two kinds of killings hinges on the element of malice, the former being without, and the latter with, malice. The absence of malice, however, does not mean the killing is justified or excused so as not to be unlawful; it means simply that the killing is mitigated so as not to be murder but manslaughter. Our cases have traditionally recognized the distinction between mitigation and excuse in the law of homicide. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), and cases therein cited and discussed.

The error in the trial court’s instructions stems from the failure to recognize this difference between mitigation and excuse. The trial court instructed that malice was “that condition of mind that prompts a person to take the life of another intentionally .. . without just cause, excuse or justification.” This instruction, correct insofar as it goes, is incomplete. The trial court should have added “and without mitigation.”

Failure to include circumstances in mitigation as capable of rebutting malice, in effect, precluded the jury from considering at all defendant’s reasons for killing his father on the issue of whether he acted with malice. The instructions were that only matters which excused the killing altogether were sufficient to rebut the element of malice! The trial court then told the jury that defendant’s reasons for killing his father would not excuse the killing, saying,

*201I charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death.

Although the trial court followed this immediately with, “But you may consider such belief in determining whether the killing was done with malice,” he gave the jury no theory by which the circumstances might in law rebut the inference of malice which arose from the intentional killing with a deadly weapon. In essence this instruction was superfluous because the jury had already been told that only legal defenses, as opposed to circumstances in mitigation, could be considered on the issue of malice. At best the instructions were conflicting on the crucial element in the case. Ordinarily this kind of error calls for a new trial. State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230 (1969).

The jury’s confusion concerning the malice instructions is revealed by their three requests that the trial court repeat them and the trial court’s finally submitting them to the jury in writing.

For this error in the trial court’s instructions, I vote to give defendant a new trial.

OPINION OF THE COURT

Cooke, J.

In the setting of these two appeals, in each of which defendant has been sentenced to death, we are called upon to determine the constitutionality of New York’s death penalty statute—a legal issue—not to express our views as to whether such a statute, granted that it is constitutional, is wise or advisable—a legislative concern.

I

Defendant Joseph Davis appeals directly from a judgment of the Supreme Court, Westchester County, convicting him, after a jury trial, of murder in the first degree, two counts of robbery in the first degree, two counts of robbery in the second degree and criminal possession of a weapon in the second degree, and sentencing him to death for the crime of *24murder in the first degree and to various indeterminate terms for the other crimes.

At about 10:30 p.m. on September 17, 1974, Officer Harold Woods of the Yonkers Police Department was in plain clothes and on his way to report for duty when he stopped at an A & P in Yonkers for a container of milk. As he attempted to leave the market, one of two men who were in the process of robbing the place stopped him. When Woods identified himself as a policeman, the robber shot him in the neck causing his death five days later. Favia, the assistant manager of the A & P, testified that a man approached him, produced a gun, directed him to the cashier’s booth where Mary Cahill was preparing the night’s deposit and then ordered them to put money into a canvas bag which he carried. While placing money in the sack, Favia heard a shot at the front of the store and a voice saying "Come on, man, we have to get out of here.” Kevin Wynne, the boyfriend of Mary Cahill, related that another man, whom he identified as defendant, stood by the door; that, when a customer attempted to leave, defendant pushed him back; and that, when the customer proceeded forward again, inquired what was going on and said he was a cop, defendant took out a gun and shot him. Mary Cahill swore that, after she and Favia had placed over $5,000 into the bag, she heard a man near the front doors say "Oh, you’re a cop”, followed by an expletive and then a shot. Charlie Cola, a produce clerk, testified he saw defendant push a man in the front entrance area and say "Get back in there”, that defendant pushed the man again saying "Get back into the store”, that the man said "What are you doing? I’m a cop” and that defendant then shot him. Ann Ringler, a checker, heard a "pop” by the door, looked over and saw a man fall to the floor bleeding with defendant standing over him. Melvin Jones, an FBI informer, took the stand and stated that on September 18, 1974 he was at a bar in Manhattan when defendant and "Bo” Perkins appeared, that they told him they did something and had just "wasted” a guy up in Yonkers or Mount Vernon, that they both had .38 revolvers and money, that defendant gave him a $50 bill and also gave money to Lu, the owner of the bar who was defendant’s girl friend.

Defendant testified in his own behalf. He recalled that he flew to New Orleans on a Delta Airlines flight on September 6, 1974, that the plane arrived there in the evening and was met by defendant’s first cousin, Arthur Johnson. He stated that at *25no time did he leave the New Orleans or Napoleonville areas of Louisiana during the period ensuing from his arrival until his arrest on September 28, 1974 and that while at New Orleans he worked with Mitchell Romar as an auto mechanic. He denied being in the City of Yonkers on September 17, that he had killed a police officer on that day and that he had met Jones during the interval in question. Arthur Johnson and his wife testified as to defendant’s living with them while in New Orleans and specifically that he was in their home both on September 17 and September 18 at the times mentioned. Arthur Johnson told of defendant’s work with Romar. Romar swore that on September 17 and 18 he had worked with defendant. Lucia Thompson, the owner of the Manhattan bar, testified that the last she saw defendant prior to trial was on September 6, 1974 when he enplaned to New Orleans, that she did not see him on September 17 or 18 and that he did not give her any money from September 6, 1974 through the remainder of that month.

On rebuttal, Danny Mese testified that on September 17 he saw a tow truck operated by a man named Mitchell and that he did not see anyone with him. A Delta Airlines stewardess testified she saw defendant on a flight from New Orleans to New York on September 11, 17 or 23.

Defendant contends that it was error for the court not to admit into evidence, unconditionally on his offer, a photograph identified as People’s Exhibit 35. Utilizing a device creating a photo montage incorporating certain features of a suspect which is then projected upon a screen, Wynne assisted in the construction of two images resembling the two men involved in the A & P robbery—"[f]irst * * * the robber” and "then the shooter”. Photographs were then taken of each projection in the same order. When asked what Exhibit 35 was, Wynne responded: "It’s supposed to be the picture of the man that shot the police officer.” He stated that the exhibit was not a photographic reproduction of the picture that was on the screen, differing in that "like the face blew up. The cheeks were larger. Like the eyebrows became lighter. As you can see, there was like a glare on the screen from the picture, and that’s pretty much what happened. Like it just blew up the face entirely.” The witness identified Exhibit 36 as "supposed to be the photograph of the robber” and said that both photos were distorted from the pictures he had seen on the screen, that "[t]hese are not the guys I picked” and that *26"these are the photographs they handed me as being the robber here and the shooter here, and I disagreed * * * [b]ecause of the facial features, that they’re wrong.” Although the trial court ruled that it would not admit one photograph without the other, under the circumstances evinced in Wynne’s testimony, it cannot be said that the rejection of Exhibit 35 was error (see Alberti v New York, Erie & Western R. R. Co., 118 NY 77; Nies v Broadhead, 75 Hun 255, 256; Catanese v Quinn, 29 AD2d 675; McCormick, Evidence [2d ed], § 214; Richardson, Evidence [Prince—10th ed], § 137; Fisch, New York Evidence [2d ed], § 142, p 82).

The name and address of Oliver Smith was listed in the People’s alibi notice of rebuttal. The People did not call Smith but the defendant did call him as a surrebuttal witness, whereupon he testified that he gave to the Yonkers police a signed statement dealing with the case and that he "had made [the] statement under duress.” At that point, an objection was made and sustained. In discussing the ruling, defense counsel stated, relating a conversation he had with Smith, that Smith had been taken to a precinct in New York City where he was interrogated, that a day or two later he was picked up by New York City police in the company of a Yonkers detective or two and taken to a second New York City precinct for questioning, that at this juncture he told "them” he was on parole and "they” said "Well, look, Smith, just by being in this headquarters you are in violation of parole”, that they prodded him as to when he last saw Davis, that at a fourth interview in Yonkers Smith said "Look, fellows, you write down anything you want about what I know, and I will sign it”, and that, as counsel understood it, the statement says he saw Davis in New York during the middle of September, 1974. While a party’s attempt to procure false testimony or to corrupt a witness, though collateral to the issues, is competent as an admission by acts and conduct that the party’s case is weak and its evidence dishonest (Nowack v Metropolitan St. Ry. Co., 166 NY 433, 437) and while the fact that evidence was fabricated is admissible even though the evidence itself was not used (see 1 Wharton’s Criminal Evidence [13th ed], § 218), there is no indication, much less proof, of falsification on the part of the police or misconduct such as bribery of a witness nor any "fastening” of such wrongdoing to the prosecution (see McCormick, Evidence [2d ed], § 273, p 660). Here, the *27statement signed by Smith was not offered or received in evidence.

Relevant evidence means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” (Uniform Rules of Evidence, rule 401 [1974]). It tends to convince that the fact sought to be established is so (People v Yazum, 13 NY2d 302, 304). Relevance, however, is not always enough, since "even if the evidence is proximately relevant, it may be rejected if its probative value is outweighed by the danger that its admission would prolong the trial to an unreasonable extent without any corresponding advantage; or would confuse the main issue and mislead the jury; or unfairly surprise a party; or create substantial danger of undue prejudice to one of the parties” (Richardson, Evidence [Prince—10th ed], § 147, p 117; see, also, People v Harris, 209 NY 70, 82; McCormick, Evidence [2d ed], § 185, pp 438-440). Since the attempt to introduce Smith’s testimony on a collateral issue was for the obvious purpose of creating the impression that a substantial portion of the prosecution’s proof was tainted in a fashion similar to the proffered Smith account, the probative value of the testimony could be outweighed by dangers that the main issue would be obscured, by prolongation of trial and by the solid possibility of undue prejudice to the prosecution. Therefore, the discretion of the trial court was not abused (see Radosh v Shipstad, 20 NY2d 504, 508; Fisch, New York Evidence [2d ed], § 3, p 5).

There is no merit to defendant’s assertion of error because of the denial of a new trial. The newly discovered evidence which formed the basis of the motion consisted of a copy of an airline schedule, purportedly to prove that defendant could not have returned by air to New Orleans from the New York area after the commission of the crime on September 17, so as to have been seen by the Johnsons in New Orleans early on the morning of September 18. Such proof would be relevant only if one accepted the alibi testimony of defendant, his relatives and friends, which proof was not accepted by the jury. It is conceded in appellant’s brief that defense counsel was aware during trial of certain airline schedules and that "very close to the end of the trial * * * a local travel agent acquainted the defense with a publication known as the Official Airline Guide published by Reuben *28Donnelly in Chicago.” It is a portion of this Donnelly publication which defense seeks to introduce as new evidence, yet significantly no application was made during trial for an adjournment to secure it. In any event, the evidence was not "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 330.30, subd 3).

II

The second appeal involves a judgment of the Supreme Court, Kings County, convicting Joseph James of murder, first degree; murder, second degree; attempted murder, second degree; assault, first degree; criminal possession of a weapon, second degree; and escape, second degree; and sentencing him to death for murder in the first degree and to concurrent prison terms for the other crimes. This, too, is a direct appeal.

There was proof that, on the morning of September 9, 1975, James, in the custody of Officers Connor and Motchan of the New York City Department of Corrections, was escorted to the dental clinic at the Kings County Hospital for examination. At that time defendant was incarcerated awaiting trial on an unrelated murder charge. While waiting for X rays to be taken defendant, cuffed to Motchan, asked to go to the lavatory. Motchan, unarmed, went into a bathroom with defendant and removed a chain from defendant’s wrist. Connor, who was armed, remained outside. Defendant seized a pistol, which had been secreted at his request in the bathroom earlier in the day by his girl friend, and confronted Officer Motchan with the weapon. Motchan opened the door and warned his colleague that defendant had a gun, whereupon defendant shot and killed Motchan. Defendant then fired at and hit Connor twice, shot a patient-bystander and escaped from the hospital. Defendant did not take the stand.

Defendant’s brief and reply brief in this court contain points to the effect that the trial court’s Sandoval rulings constituted prejudicial error requiring a retrial and that said court violated the principles of Witherspoon v Illinois (391 US 510) in dismissing six persons in the venire. After filing said briefs, defendant’s appellate counsel, orally and in writing and with defendant’s concurrence after a discussion with trial counsel, has requested the court "not to consider, and treat as withdrawn” these arguments for relief as well as any portion of the point in said briefs to the effect defendant was not provén guilty of murder in the first degree beyond a reasonable doubt, *29which could be construed as arguments for a new trial. While these grounds, as to which there has been such a request and withdrawal and for which a reason has been ascribed, are deemed without merit, in the context of our adversary system there is no reason to interfere with this appellate strategy involving a conscious choice not to raise certain issues (see People v De Renzzio, 19 NY2d 45, 50-51; Ennis v Le Fevre, 560 F2d 1072; cf. People v DiPiazza, 24 NY2d 342, 352; People v Castro, 19 NY2d 14, 17-18).

III.

We all agree that as to defendant Davis, while the facts support a conviction of the crime of murder in the second degree, there has not been proof of guilt beyond a reasonable doubt as to all of the elements of the crime óf murder in the first degree. After careful review, there continues to be doubt among us concerning whether the victim, Officer Woods, was acting in the line of duty when he was killed, which is one of the elements of murder in the first degree as specified by our Legislature (Penal Law, § 125.27, subd 1). Accordingly, as to defendant Davis we conclude on nonconstitutional grounds that his guilt of murder in the first degree has not been established, and thus do not reach the constitutional issue as to him.

IV

On the other hand, as to defendant James we conclude that there has been proof beyond a reasonable doubt of his guilt of murder in the first degree, for which he has been sentenced to death, and thus now consider his contention that the statutory death penalty provisions under which he was sentenced are unconstitutional. Section 60.06 of the Penal Law, pursuant to which these sentences were imposed provides that ”[w]hen a person is convicted of murder in the first degree as defined in section 125.27, the court shall sentence the defendant to death.” Thus, when read with section 125.27,1 New York has enacted a death penalty statute which positively provides for a mandatory death sentence for all persons over 18 years of age found to have intentionally caused the death (1) of a police officer in the line of duty where defendant *30knew or had reason to know the victim was such an officer, or (2) of an employee of a State correctional institution or local correctional facility under such circumstances (as specified in [1]), or (3) of anyone if defendant was confined or in custody for a life term or upon an indeterminate sentence with a maximum of life and a minimum of at least 15 years or if defendant had escaped from such confinement or custody and had not yet been returned.

We approach our consideration of this issue with full recognition that the State statutes under scrutiny carry with them a strong presumption of constitutionality, that they will be stricken as unconstitutional only as a last resort and that courts may not substitute their judgment for that of the Legislature as to the wisdom and expediency of the legislation. As stated by Justice Blackmun in his dissent in Furman v Georgia (408 US 238, 411): "We should not allow our personal preferences as to the wisdom of legislative * * * action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great”. At the same time, it must be kept firmly in mind that this court, as other State courts, is bound by rulings of the United States Supreme Court as to the validity of State statutes under the United States Constitution (Magnolia Petroleum Co. v Hunt, 320 US 430, 438; Bourjois Sales Corp. v Dorfman, 273 NY 167, 171).

The Eighth Amendment to the United States Constitution provides that "cruel and unusual punishments [shall not be] inflicted”, and the Fourteenth Amendment by its due process clause prohibits the infliction of such punishment by a State (Francis v Resweber, 329 US 459, 463). In People v Fitzpatrick (32 NY2d 499, 512-513), in considering former death penalty statutes in this State (Penal Law, former §§ 125.30, 125.35), this court stated that "[s]ince * * * the New York statute * * * challenged * * * leaves infliction of the death penalty solely to the discretion of the jury, we conclude, in light of the Supreme Court’s reading of the Eighth Amendment in Fur-man [v Georgia] (408 U. S. 238, supra), that we have no alternative but to hold that that penalty constitutes cruel and unusual punishment within the sense of that provision”. Since that decision, New York has enacted section 125.27 of the Penal Law (L 1974, ch 367, § 5) which specifies the instances when murder in the first degree is committed and which incorporates two affirmative defenses applicable to those in*31stances—that "defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” and that "defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide.”

Since the enactment of section 125.27, the Supreme Court has issued several opinions concerning State statutes revised in an effort to conform to Furman v Georgia. In Gregg v Georgia (428 US 153), the plurality opinion of the court summarized, at page 195, that "the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information”. (Emphasis added.) In Woodson v North Carolina (428 US 280, 304), it was held that "the fundamental respect for humanity underlying the Eighth Amendment * * * requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death”. In Roberts (Stanislaus) v Louisiana (428 US 325), it was made clear that this principle applies even where the crime of first degree murder is narrowly defined. There it was stated at page 332: "That Louisiana has adopted a different and somewhat narrower definition of first-degree murder than North Carolina is not of controlling constitutional significance. The history of mandatory death penalty statutes indicates a firm societal view that limiting the scope of capital murder is an inadequate response to the harshness and inflexibility of a mandatory death sentence statute.” This analysis is not based simply on the Supreme Court’s conclusion that mandatory death sentences are unduly harsh insofar as they fail to take into account mitigating circumstances; it is also based on the historical fact that "[a]t least since the Revolution, American jurors have, with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict” (Woodson v North Carolina, 428 US 280, 293, supra).

*32Based on these statements, since New York’s statute provides neither for the furnishing of information, without which there cannot be consideration of the individual offender and the circumstances of a particular offense, nor standards to guide the sentencing authority in the use of that information had it been furnished, unconstitutionality is certainly indicated. Indeed, since the statute requires by its terms a mandatory death penalty for the enumerated crimes, it is indistinguishable from those death penalty statutes found unconstitutional in Woodson v North Carolina (428 US 280, supra) and Roberts (Stanislaus) v Louisiana (428 US 325, supra). (See People v Velez, 88 Misc 2d 378 [McQuillan, J.].)

Any doubt concerning the question of constitutionality, however, has now been removed and has been firmly resolved by the Supreme Court in Roberts (Harry) v Louisiana (431 US 633). It is decisive. There, Harry Roberts was indicted and convicted of first degree murder of a police officer, engaged at the time of his death in the performance of his duties, and, as required by Louisiana statute (La Rev Stat Ann, § 14:30), was sentenced to death. There, in view of prior holdings (see 431 US, at p 638, n 7), a majority of the Supreme Court, with clarity and direction and without obfuscation, stated (pp 636-637):

"To be sure, the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance. There is a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property. But it is incorrect to suppose that no mitigating circumstances can exist when the victim is a police officer. Circumstances such as the youth of the offender, the absence of any prior conviction, the influence of drugs, alcohol, or extreme emotional disturbance, and even the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct are all examples of mitigating facts which might attend the killing of a peace officer and which are considered relevant in other jurisdictions.

"As we emphasized repeatedly in Roberts and its companion cases decided last Term, it is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. Because the Louisiana *33statute does not allow consideration of particularized mitigating factors, it is unconstitutional”. (Emphasis added.)

So, too, plainly and simply and without verbiage, because the New York statute "does not allow consideration of particularized mitigating factors” for purposes of "the capital sentencing decision” as to "the particular offender”, it is unconstitutional.

That the statutory framework may in some manner reflect various mitigating factors as defenses is not enough to save New York’s death penalty statute from constitutional infirmity. Similar defenses are found in other jurisdictions, including those whose death penalty statute has been held unconstitutional by the Supreme Court. For example, Louisiana has many of the same defenses found in the New York statutes: (1) "sudden passion or heat of blood” in given circumstances may reduce a homicide to manslaughter (La Rev Stat Ann, § 14:31, subd [1]); (2) justification is a defense to prosecution for a crime (§ 14:18); (3) incapacity to distinguish between right and wrong because of mental disease or defect is a defense (§ 14:14), and intoxication may preclude specific criminal intent (§ 14:15). Similar to New York’s defense of duress (Penal Law, § 40.00) is Louisiana’s justification defense of compulsion, but such is not a defense to murder in that jurisdiction (see La Rev Stat Ann, § 14:18, subd [6]). In addition, Louisiana has a defense of infancy (§ 14:13), as does New York (Penal Law, § 30.00), but its statute does not set forth a specific age limitation in the case of capital crimes. In this respect, however, under the recent decisions of the Supreme Court the exclusion of an entire category of offenders under 18 years of age by New York (Penal Law, § 125.27, subd 1, par [b]) from punishment by death is not a mitigating factor since such limitations do not afford individualized consideration of the offender (Rockwell v Superior Ct. of Ventura County, 18 Cal 3d 420, 438). Aside from the fact that Louisiana’s law includes many of the same defenses, examination of the statutory defenses reveals their inadequacy as a solution to the constitutional deficiencies of New York’s death penalty statute.2

The problem lies partly in the distinction between a defense as that term is used in criminology and mitigating factors as *34described by the Supreme Court. The answer does not turn on whether mitigating factors may be considered at the guilt portion of the trial or whether such factors may be elevated to defenses. The problem is of greater magnitude than mere procedure or form. In a statutory framework where there is no distinct consideration of mitigating factors, there is an inherent fallacy in the notion that defenses provide the same function or are as good as or even better than separate consideration of such mitigating factors. The fundamental error in the reasoning is that defenses relate to guilt or innocence whereas a mitigating factor may be of no significance to a determination of criminal culpability. This was recognized in Gregg v Georgia (428 US 153, 190, supra), when it was noted that "[m]uch of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question.” The point is that what is urged in mitigation will often not rise to the level of a defense. For example, in considering the third question of the Texas statute, which asks whether the conduct of the defendant was unreasonable in response to any provocation by the deceased, it was remarked: "This might be construed to allow the jury to consider circumstances which, though not sufficient as a defense to the crime itself, might nevertheless have enough mitigating force to avoid the death penalty—a claim, for example, that a woman who hired an assassin to kill her husband was driven to it by his continued cruelty to her” (Jurek v Texas, 428 US 262, 272, n 7). In short, statutory defenses alone do not take the place of a distinct consideration of mitigating factors, and this is all the more so where those defenses do not include a significant portion of what first the plurality and now the majority of the Supreme Court has emphasized should be examined—the character and record of the defendant.

The plurality of the Supreme Court was careful to state that it was not suggesting that a finding of constitutionality was dependent on following exactly the procedures used in those statutes upheld by it, instead explaining that "each distinct system must be examined on an individual basis” (Gregg v Georgia, 428 US 153, 195, supra). But, except in circumstances not relevant here,3 the common thread running through the *35court’s analysis of statutes of other jurisdictions is that there should be a consideration of the "relevant facets of the character and record of the individual offender” (Woodson v North Carolina, 428 US 280, 304, supra) or, "the attributes of the individual offender” (Roberts [Stanislaus] v Louisiana, 428 US 325, 334, supra). This requirement was derived from the observation that traditionally a determination of what is an appropriate sentence requires an investigation of the "character and propensities of the offender” (Gregg v Georgia, 428 US 153, 189, supra, quoting from Pennsylvania ex rel. Sullivan v Ashe, 302 US 51, 55). Therefore, it was reasoned that the "futility of attempting to solve the problems of mandatory death penalty statutes by narrowing the scope of the capital offense stems from our society’s rejection of the belief that 'every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender’ ” (Roberts [Stanislaus] v Louisiana, 428 US 325, 333, supra, quoting from Williams v New York, 337 US 241, 247).

Of telling significance, the New York defenses do not take into account the character, propensity, record or attributes of the individual offender. This omission results from the simple fact that an unblemished record and evidence of prior good character has never been considered as a defense, and probably never will be. Of course, one may infer character from conduct, but the Supreme Court has indicated that a more individualized consideration is necessary. Hence, while there may be some visual or empirical satisfaction derived from counting and generally comparing the New York defenses with the mitigating factors indorsed by the Supreme Court, the fact is that these defenses do not require consideration of the character and record of the individual in respect to his sentence or punishment as mandated by the Supreme Court (see, e.g., Roberts [Harry] v Louisiana, supra).

This individualized consideration, with proper guidance and standards, is the crucial aspect of the sentencing decision. "What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine” (Jurek v Texas, 428 US 262, 276, supra). New York’s defenses simply do not present the re*36quired information and, if the defenses are not established, the defendant must be sentenced to death. New York’s law does not permit a jury which has rejected these defenses and has found a defendant guilty of murder in the first degree to then mitigate the punishment by resurrecting the defenses. Indeed, this is implicit in our justification defense statute which states that "[t]he necessity and justifiability of * * * conduct may not rest upon considerations pertaining only to the morality and advisability of [a] statute” (Penal Law, § 35.05, subd 2; see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 35.05, p 83).

Accordingly, the argument urging constitutionality fails for two reasons: initially, because the statutory framework does not permit the consideration of legally insufficient defenses as mitigating factors, and, more importantly, because these defenses do not present sufficient information about the character and record of the individual to allow a constitutionally permissible sentencing decision. Properly viewed, it is thus apparent that our statute is a mandatory capital punishment statute of the same type as has been struck down by the Supreme Court.4

V

Under the Constitution of our State, in capital cases in which the sentence of death has been imposed, this court is vested with the power to and must review the facts (NY Const, art VI, §§ 3, 5; People v Carbonaro, 21 NY2d 271, 274). The scope of our inquiry into the facts in capital cases was defined in People v Crum (272 NY 348, 350): "A review of the facts means that we shall examine the evidence to determine whether in our judgment it has been sufficient to make out a case of murder beyond a reasonable doubt. We are obliged to weigh the evidence and form a conclusion as to the facts. It is not sufficient, as in most of the cases with us, to find evidence which presents a question of fact; it is necessary to go further before we can affirm a conviction and find that the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt.”

*37In summary, under the United States Constitution, the death penalty is not per se unconstitutional, but New York’s statute, as presently written, in the absence of any provision in it for consideration of relevant and particularized mitigating factors, despite its narrow categories and various statutory defenses, is unconstitutional under recent holdings of the United States Supreme Court. Since we have determined under the decisions of the United States Supreme Court, the ultimate arbiter on the question, that the sentence of death as imposed on defendant James was invalid as a matter of law, that part of the judgment of conviction must be modified (CPL 470.15, subd 4, par [c]). In addition, as noted, as to defendant Davis we have determined on nonconstitutional grounds that his guilt of murder in the first degree has not been established beyond a reasonable doubt. However, based on our review of the records, as to the respective indictment counts charging murder in the first degree, we determine that in each case there has been a showing beyond a reasonable doubt of defendant’s guilt of murder in the second degree in violation of subdivision 1 of section 125.25 of the Penal Law, and hence there should be a resentencing of each defendant.

As to appellant Davis, the judgment should be modified by vacating the sentence of death and the case remitted to Supreme Court, Westchester County, for resentencing and, as so modified, the judgment should be affirmed.

As to appellant James, the judgment should be modified by vacating the sentence of death and the case remitted to Supreme Court, Kings County, for resentencing, and, as so modified, the judgment should be affirmed.

APPENDIX

"A person is guilty of murder in the first degree when:

"1. With intent to cause the death of another person, he causes the death of such person; and

"(a) Either:

"(i) the victim was a police officer as defined in subdivision 34 of section 1.20 of the criminal procedure law who was killed in the course of performing his official duties, and the defendant knew or reasonably should have known that the victim was a police officer; or "(ii) the victim was an employee of a state correctional institution or was an employee of a local correctional *38facility as defined in subdivision two of section forty of the correction law, who was killed in the course of performing his official duties, and the defendant knew or reasonably should have known that the victim was an employee of a state correctional institution or a local correctional facility; or

"(iii) at the time of the commission of the crime, the defendant was confined in a state correctional institution, or was otherwise in custody upon a sentence for the term of his natural life, or upon a sentence commuted to one of natural life, or upon a sentence for an indeterminate term the minimum of which was at least fifteen years and the maximum of which was natural life, or at the time of the commission of the crime, the defendant had escaped from such confinement or custody and had not yet been returned to such confinement or custody; and

"(b) The defendant was more than eighteen years old at the time of the commission of the crime.

"2. In any prosecution under subdivision one it is an affirmative defense that:

"(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree; or

"(b) The defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime except murder in the second degree.

"Murder in the first degree is a class A-l felony.”

Chief Judge Breitel (dissenting in part).

I would modify in the Davis case to reduce the conviction to murder in the second degree on the ground that defendant’s guilt of murder *39in the first degree has not been established in law and in fact beyond a reasonable doubt. Consequently, it is not, in the Davis case, necessary or appropriate to reach any constitutional issue concerning New York’s capital punishment statute. I would affirm in the James case on the ground that his guilt of murder in the first degree has been established beyond a reasonable doubt and that the New York statute appears to meet the latest tests for validity laid down by the United States Supreme Court.

The constitutional issue before the court is, as the majority opinion observes, not to be determined by the philosophical or penological predilections of the court or its individual members on the appropriateness of capital punishment as a sanction in a civilized society. Instead, the issue is whether Federal constitutional limitations allow the Legislature as the lawmaking representatives of the people to determine the values and judgments to be attached to the several factors influencing the choice of capital punishment as a sanction.*

Davis and James, defendants in unrelated criminal cases, each convicted of first degree murder and sentenced to death, appeal directly to this court (NY Const, art VI, § 3, subd b; CPL 450.70). One intentionally killed a police officer. The other intentionally killed a correction officer.

There are two issues. The first, given this court’s power to review the facts in a capital case, is whether, in each case, the evidence justifies the jury’s verdict (NY Const, art VI, § 3, *40subd. a; CPL 470.30, subd 1). The second is whether section 60.06 of the Penal Law, providing capital punishment for first degree murder, an offense defined in narrow terms (Penal Law, § 125.27), violates Federal constitutional proscriptions of cruel and unusual punishment (US Const, 8th Arndt; see, also, NY Const, art I, § 5).

The evidence in the Davis case failed to establish beyond a reasonable doubt that the police officer killed was acting in the line of duty at the time he was shot. Hence, the crime of first degree murder was not made out and there should be a modification.

The judgment against defendant James should be affirmed. In his case, every element of first degree murder was established beyond a reasonable doubt. Because the New York statute defining first degree murder is so narrowly drawn, and because the statutory scheme takes into consideration possible mitigating factors by making them defenses to the substantive crime, it does not run afoul of constitutional limitations.

On September 17, 1974, Davis participated in an armed robbery of a supermarket. While his collaborator filled a canvas bag with money in excess of $5,000, Davis stood watch, relatively inconspicuously, just inside the exit door. Police Officer Woods, not in uniform, but about to report for work, had just paid for his purchases, apparently unaware of the ongoing robbery. As Woods attempted to leave the store, he was shoved by Davis and ordered to "get back in the store.” Recovering and starting out for a second time, he was again repulsed. Angrily, according to one witness, he exclaimed, "What are you doing. I’m a cop.” Davis responded with a statement, "You’re a cop, huh”, and a bullet, which felled Officer Woods. This exchange was corroborated by other witnesses. Davis and his cohort emptied another cash register, ordered everyone to the back, and left. Officer Woods, having suffered a severed spinal cord, died five days later of broncho-pneumonia.

At trial, the proof of Davis’ guilt was overwhelming. Six witnesses placed him at the scene; four of these witnessed the killing and identified Davis as the killer. In addition, an FBI informer testified to admissions made to him by defendant. The defense sought to place Davis in New Orleans at the time of the shooting, but his alibi witnesses failed to contradict convincingly the strong evidence presented by the prosecution.

*41Thus, the evidence leads, inexorably, to the conclusion that Davis intentionally killed Officer Woods.

There is no doubt whatever that appellant James is guilty of the killing of Correction Officer Motchan. For almost two months, James, jailed on a pending murder charge, with an impending probability of a life sentence, discussed his escape with a girl friend, Patricia Singleton, during daily telephone conversations. Then on September 7, 1975, on defendant’s request, the girl friend procured a gun. After receiving further instructions from defendant on the morning of September 9, Miss Singleton left the gun in the lavatory in the Kings County Hospital Dental Clinic, where James had an appointment that day.

James was escorted to the clinic by two correction officers, Motchan and Connor. When defendant asked to use the lavatory, Officer Motchan, unarmed, accompanied him, while Officer Connor waited outside the door. After some scuffling in the lavatory, Officer Motchan emerged, without being able to close the door behind him, warning Connor that appellant had a gun. A shot from the lavatory hit Motchan in the back, mortally wounding him, and James, in the course of his escape, also wounded Officer Connor and an innocent bystander in the now-panicked waiting area.

James contended that the undisputed shooting was an "accident”, caused by Motchan’s stumbling as he left the lavatory. But the testimony of eyewitnesses does not support this contention, and defendant’s continued shooting at other bystanders belies it. And if more' be needed, there is defendant’s desperate letter to a former girl friend, sent days before the attempted escape: "Listen, Debbie, I am very serious about what I am about to say. I am going to have an interview this week. I’m getting out of here or die trying. And if I die trying, you know me, that I am going to take someone with me”.

Although it is beyond reasonable doubt that each appellant intentionally caused the death of his victim, in the Davis case, a police officer, and in the James case, a correction officer, that alone is not enough to establish a violation of section 125.27 of the Penal Law. The restricted scope of that section requires that the officer be "killed in the course of performing his official duties” (subd 1, par [a], els [i], [ii]). As to this element, there was a failure of proof in the Davis case. True, decedent Woods announced "I’m a cop”, provoking Davis to shoot him. But from those words alone, one may not draw *42beyond a reasonable doubt the inference that Woods was acting in the line of duty. And there is no more. Woods might have uttered the words expecting only to induce Davis into moving aside and letting him continue on his way. Other likely explanations exist. The point is not that these inferences are any better than the one drawn by the prosecution; the point is rather that there is not evidence beyond a reasonable doubt to support any one inference more than another arising out of Woods’ utterance. The result is that one may only speculate about the decedent’s state of mind and his intentions. Davis’ conviction must, therefore, be reduced to one for murder in the second degree.

The James case, by contrast, falls squarely within the proscription of the statute (Penal Law, § 125.27). What remains to be addressed is only the constitutional challenge to the statute mandating a sentence of death (Penal Law, § 60.06).

Section 125.27 of the Penal Law, defining first degree murder, is applicable only to three categories of intentional killing. The first two cover killings of police officers and correctional employees in the course of performing their duties, where defendant knew or reasonably should have known that the victim was a police officer or correctional employee (subd 1, par [a], els [i], [ii]). The third category applies to defendants who were life prisoners or escaped life prisoners (cl [iii]). There are, significantly, two ameliorative provisions in the statute. First, a defendant may not be convicted of first degree murder unless he is at least 18 years of age (subd 1, par [b]). Second, it is a defense in a prosecution for first degree murder that defendant acted under the influence of extreme emotional disturbance (subd 2, par [a]).

It is now settled, for the nonce, at least, that capital punishment, per se, does not violate Federal constitutional prohibitions of cruel and unusual punishment (Gregg v Georgia, 428 US 153, 168-187; Proffitt v Florida, 428 US 242, 247; Jurek v Texas, 428 US 262, 268). Although the Supreme Court has held invalid mandatory capital punishment statutes covering a wide range of offenses, it has never been held that all mandatory capital punishment statutes are necessarily inconsistent with the Constitution (see Roberts [Harry] v Louisiana, 431 US 633; Roberts [Stanislaus] v Louisiana, 428 US 325; Woodson v North Carolina, 428 US 280). In fact, it has been noted, explicitly, that mandatory capital punishment *43statutes applied to assaults or murders committed by prisoners serving life sentences might well pass constitutional muster (Roberts [Harry] v Louisiana, 413 US 633, 637, n 5, supra; Roberts [Stanislaus] v Louisiana, 428 US 325, 334, n 9, supra; see Gregg v Georgia, 428 US 153, 186, supra; Woodson v North Carolina, 428 US 280, 292, n 25, supra).

The life prisoner presents a special case, according to the Supreme Court, because there may be no satisfactory deterrent other than the death penalty. But the court did not hold that only in the case of a life prisoner may a mandatory capital punishment statute be applied. Only a weak imagination would fail to perceive other cases just as special as that of the life prisoner. For instance, belief that a soldier is frightened of death and considering desertion in time of war may justify the threat of capital punishment to keep him at his station. And, of course, a prisoner like appellant James in the instant case, not yet sentenced to life imprisonment, but facing a murder charge which could well bring upon him such a sentence, presents a case no different from that of the life prisoner. Nor would the killing of a victim of or witness to a crime punishable by life imprisonment, to prevent successful identification and prosecution for the first crime, be of a different nature.

The Supreme Court has recognized, then, that mandatory capital punishment statutes applicable only in very special cases may not run afoul of constitutional limitations. It is not, however, necessary to decide whether all the categories of section 125.27 of the Penal Law constitute "special” cases, because the New York statute is not truly a "mandatory” capital punishment statute, as that term has been used by the Supreme Court.

Crucial are the statutory defense of extreme emotional disturbance and the limitation on conviction of first degree murder to persons more than 18 years old. These mitigating circumstances are precisely the kind of factors, specific to the offense or the offender, which the Supreme Court has required to sustain capital punishment statutes (see, e.g., Gregg v Georgia, 428 US 153, 193-195, n 44, supra). In fact, of the eight mitigating circumstances proposed by the Model Penal Code, and cited in Gregg, six are, in some manner, reflected in the New York statutory scheme: (1) extreme emotional disturbance is a defense to murder (Penal Law, § 125.27, subd 2, par [a]); (2) conduct causing or aiding another to commit suicide *44may not bring a conviction for murder (Penal Law, § 125.27, subd 2, par [b]); (3) justification for the killing is a defense (Penal Law, art 35); (4) duress is a defense (Penal Law, § 40.00); (5) lack of capacity by reason of mental disease or defect is a defense (Penal Law, § 30.05), and intoxication may negative the intent to commit first degree murder (Penal Law, § 15.25; People v Koerber, 244 NY 147, 151-152; see People v Jackson, 14 NY2d 5, 7-8); and (6) only those over 18 years of age at the time the crime was committed may be convicted of first degree murder (Penal Law, § 125.27, subd 1, par [b]). (See Gregg v Georgia, 428 US 153, 193-194, n 44, supra, quoting ALI Model Penal Code, § 210.6 [Proposed Official Draft, 1962].)

It is notable that these are factors that the Supreme Court in the Roberts (Harry) case (431 US 633, 636-637, supra), relied on and quoted by the majority, stipulated as bearing upon the validity of a capital punishment statute. New York’s statutory scheme is even better in raising these factors to complete or partial defenses.

True, other capital punishment statutes sustained by the Supreme Court have provided for consideration of mitigating factors after the jury has convicted defendant of the substantive offense (Gregg v Georgia, 428 US 153, 196-198, supra; Proffitt v Florida, 428 US 242, 247-253; supra; Jurek v Texas, 428 US 262, 268-274, supra). But there is no reason to assume that mitigating factors could not, instead, and even preferably, be built into the definition of the substantive offense. Indeed, the Supreme Court itself used similar analysis in Jurek v Texas, indicating that narrowing the categories of murders for which capital punishment may be imposed serves much the same function as listing aggravating factors for the jury to consider (supra, p 270). The situation is analogous where mitigating factors are involved. Certainly, if every possible mitigating factor were made a defense to the substantive crime, there would be little reason for the jury to consider mitigating factors in making a discretionary sentencing determination.

Section 125.27 of the Penal Law does not, of course, encompass every conceivable mitigating circumstance. But the Constitution does not require so much. It is essential only "that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense” (Roberts [Harry] v Louisiana, 431 US 633, 637, supra).

*45Determining what circumstances are "relevant” must be a legislative, not judicial, task, at least once it has been determined that the Legislature has in fact decided to consider mitigating factors.

Nor in justice to the Supreme Court should it be assumed that that court would harden for all time under constitutional standards all conceivable categories of mitigating circumstances or that all must be accorded recognition, or that the procedure for their recognition must follow a particular pattern laid down by the court. It has had much too much trouble with this very problem not to be more flexible. The very caveats and provisos in its most recent opinions make this point explicit so that it is not necessary to have recourse to inference. Moreover, that court addresses constitutional principles and does not purport to write or dictate a statutory criminal code.

To recapitulate, it has never been held that all mandatory capital punishment statutes violate the cruel and unusual punishment clause of the Constitution. At least in a narrowly drawn category of special cases, a category which may be broad enough to include the entire New York statute, failure to provide for consideration of mitigating factors does not make a capital punishment statute constitutionally defective. But, in any event, the New York statute, although written in mandatory terms, is not embracively mandatory in that it does not encompass, indiscriminately and without consideration of mitigating factors, a mass aggregation of crimes. Thus, since section 125.27 of the Penal Law does require the jury to consider mitigating factors as elements of the substantive crime of first degree murder, there is no constitutional violation.

That the Constitution plays an important role in limiting the scope of capital punishment statutes is not now a matter of controversy. Unbridled jury discretion, because of possible discriminatory effects, must not be an element of the sentencing process in capital cases (Furman v Georgia, 408 US 238, reh den 409 US 902). At the opposite end of the spectrum, statutes which require mechanical application of the death penalty without any consideration of circumstances surrounding the crime and the criminal, are also unconstitutional (Roberts [Harry] v Louisiana, 431 US 633, 637, supra; Roberts [Stanislaus] v Louisiana, 428 US 325, 333, supra; Woodson v North Carolina, 428 US 280, 304, supra).

*46But within the constitutional limitations, the decision to impose capital punishment at all, as well as the decision when it should be imposed, remains within the province of the Legislature. True, it has never been established that capital punishment is an effective deterrent. But there may be other reasons, unrelated to utilitarian considerations, to justify the death penalty. Whatever one thinks of capital punishment, the Legislature is entitled to conclude, rightly or wrongly, that the death penalty serves useful social purposes. Since the Legislature has so concluded, and has drawn a statute that comports with constitutional requirements, the statute should be upheld.

The ultimate issue is whether society through its Legislature or lawmaking body may determine the usefulness of capital punishment or whether Judges are empowered to do so, recognizing that capital punishment has been a sanction throughout the history of Anglo-American law. Progressively, lawmaking bodies have restricted more and more the use of that sanction. Rarely, although on occasion, has the sanction been reinvoked. England treated the matter legislatively and eliminated the sanction for murder (Murder [Abolition of Death Penalty] Act, 1965, c 71, as amd by Statute Law [Repeals] Act, 1973, and Statute Law [Repeals] Act, 1974). Many States of the Union have abolished capital punishment. The Supreme Court, both in Furman, and in subsequent cases, has never presumed to strike down the sanction as inherently invalid. It has only attacked the procedures used which allowed arbitrariness or compelled mechanical absolutist application across a broad range of homicide offenses. Nor has it ever presumed, in this troubled area, to deny the power of the Legislature to rely on the extreme sanction. Its greatest concern has been the racial discrimination which resulted from the arbitrariness allowed fact finders and sentencing courts under the old procedures (see Furman v Georgia, 408 US 238, supra). In the later cases it reacted to the brutality and undiscriminating mechanical application of the "absolutist” cure to the risk of arbitrariness in the "discretionary” procedures which had prevailed before (see Woodson v North Carolina, 428 US 280, supra; Roberts [Stanislaus] v Louisiana, 428 US 325, supra; Roberts [Harry] v Louisiana, 431 US 633, supra). These are the concerns which motivated the Supreme Court’s treatment of the problem.

Accordingly, I dissent in part and vote to reduce the judg*47ment against appellant Davis to a conviction of second degree murder, and to remit the case for resentencing, and to affirm the judgment against appellant James.

Judges Jones, Wachtler and Fuchsberg concur with Judge Cooke; Chief Judge Breitel concurs in a separate opinion in which Judges Jasen and Gabrielli concur.

In People v Davis: Judgment modified and the case remitted to Supreme Court, Westchester County, for resentencing in accordance with the opinion herein and, as so modified, affirmed.

Judges Jones, Wachtler and Fuchsberg concur with Judge Cooke; Chief Judge Breitel dissents and votes to affirm in a separate opinion in which Judges Jasen and Gabrielli concur.

In People v James: Judgment modified and the case remitted to Supreme Court, Kings County, for resentencing in accordance with the opinion herein and, as so modified, affirmed.

*672OPINION OF THE COURT

Jasen, J.

The significant issue on this appeal is whether the defendant, in a murder prosecution, established the affirmative defense of "extreme emotional disturbance” which would have reduced the crime to manslaughter in the first degree.

On February 28, 1977, Victoria Lo Consolo was brutally murdered. Defendant Victor Casassa and Miss Lo Consolo had been acquainted for some time prior to the latter’s tragic death. They met in August, 1976 as a result of their residence in the same apartment complex. Shortly thereafter, defendant asked Miss Lo Consolo to accompany him to a social function and she agreed. The two apparently dated casually on other occasions until November, 1976 when Miss Lo Consolo informed defendant that she was not "falling in love” with him. Defendant claims that Miss Lo Consolo’s candid statement of her feelings "devastated him.”

Miss Lo Consolo’s rejection of defendant’s advances also precipitated a bizarre series of actions on the part of defendant which, he asserts, demonstrate the existence of extreme emotional disturbance upon which he predicates his affirmative defense. Defendant, aware that Miss Lo Consolo maintained social relationships with others, broke into the apartment below Miss Lo Consolo’s on several occasions to eavesdrop. These eavesdropping sessions allegedly caused him to be under great emotional stress. Thereafter, on one occasion, he broke into Miss Lo Consolo’s apartment while she was out. Defendant took nothing, but, instead, observed the apartment, disrobed and lay for a time in Miss Lo Consolo’s bed. During this break-in, defendant was armed with a knife which, he later told police, he carried "because he knew that he was either going to hurt Victoria or Victoria was going to cause him to commit suicide.”

Defendant’s final visit to his victim’s apartment occurred on February 28, 1977. Defendant brought several bottles of wine and liquor with him to offer as a gift. Upon Miss Lo Consolo’s rejection of this offering, defendant produced a steak knife which he had brought with him, stabbed Miss Lo Consolo several times in the throat, dragged her body to the bathroom and submerged it in a bathtub full of water to "make sure she was dead.”

The following day the police investigation of Miss Lo Conso*673lo’s death began. On the evening of March 1, 1977, Nassau County Police detectives came to the apartment building in which the crime had occurred. They were in the process of questioning several of the residents of the building when defendant presented himself to the police and volunteered that he had been in the victim’s apartment on the night of the murder. While denying any involvement in the murder of Miss Lo Consolo, he professed a willingness to co-operate in the investigation.

The police accepted his offer of co-operation and requested that he accompany them to the Nassau County police headquarters in Mineóla to discuss the matter further. On the way to Mineóla, defendant was informed of his constitutional rights. He indicated that he understood his rights and that he nonetheless wished to co-operate. Defendant was interrogated by police for some nine and one-half hours thereafter and at 5:00 a.m. on the morning of March 2, 1977, he fully confessed to the murder of Victoria Lo Consolo, giving the police several oral and written statements detailing his involvement in the crime.

During the course of defendant’s interrogation, his mother, worried because her son had not appeared at a planned social gathering, telephoned the Hempstead police to report her son as a missing person. She made several calls to the Hempstead Police Department and at least one to the Nassau County Police Department’s seventh precinct in Manhasset between the hours of 11:00 p.m. on March 1, 1977 and 3:00 a.m. on March 2, 1977, and was informed by the officers at these stations that her son’s whereabouts were unknown. She then telephoned the apartment of Victoria Lo Consolo. The officer on duty there told her of the murder and gáve her no further information, but said that the police would return her call. At 4:00 a.m., having received no further information, she called the apartment again. This time another officer gave her a telephone number to call to seek further information about her son. A call to this number at 5:00 a.m. was also unavailing. However, a subsequent call to the Hempstead police yielded yet another number at the Nassau County Police Department. When Mrs. Casassa called this number, she was accurately informed that her son was held for questioning as a suspect in the Lo Consolo homicide. Thereafter, she came to the station and arranged to have counsel provided for her son.

On March 8, 1977, defendant was indicted and charged with *674murder in the second degree. Defendant made several pretrial motions seeking to suppress his statements to police and several pieces of real evidence which had been given to police during questioning. After a hearing, the motions were denied.

Defendant waived a jury and proceeded to trial before the County Court. The minutes of the suppression hearing were incorporated into the trial transcript and defendant’s confessions were received into evidence. The defendant did not contest the underlying facts of the crime. Instead, the sole issue presented to the trial court was whether the defendant, at the time of the killing, had acted under the influence of "extreme emotional disturbance”. (Penal Law, § 125.25, subd 1, par [a].) The defense presented only one witness, a psychiatrist, who testified, in essence, that the defendant had become obsessed with Miss Lo Console and that the course which their relationship had taken, combined with several pérsonality attributes peculiar to defendant, caused him to be under the influence of extreme emotional disturbance at the time of the killing.

In rebuttal, the People produced several witnesses. Among these witnesses was a psychiatrist who testified that although the defendant was emotionally disturbed, he was not under the influence of "extreme emotional disturbance” within the meaning of section 125.25 (subd 1, par [a]) of the Penal Law because his disturbed state was not the product of external factors but rather was "a stress he created from within himself, dealing mostly with a fantasy, a refusal to accept the reality of the situation.”

The trial court in resolving this issue noted that the affirmative defense of extremé emotional disturbance may be based upon a series of events, rather than a single precipitating cause. In order to be entitled to the defensé, the court held, a defendant must show that his reaction to such events was reasonable. In determining whether defendant’s emotional reaction was reasonable, the court considered the appropriate test to be whether in the totality of the circumstances the finder of fact could understand how a person might have his reason overcome. Concluding that the test was not to be applied solely from the viewpoint of defendant, the court found that defendant’s emotional reaction at the time of the commission of the crime was so peculiar to him that it could not be considered reasonable so as to reduce the conviction to manslaughter in the first degree. Accordingly, the trial court *675found defendant guilty of the crime of murder in the second degree. The Appellate Division affirmed, without opinion.

On this appeal defendant contends that the trial court erred in failing to afford him the benefit of the affirmative defense of "extreme emotional disturbance”. It is argued that the defendant established that he suffered from a mental infirmity not arising to the level of insanity which disoriented his reason to the extent that his emotional reaction, from his own subjective point of view, was supported by a reasonable explanation or excuse. Defendant asserts that by refusing to apply a wholly subjective standard the trial court misconstrued section 125.25 (subd 1, par [a]) of the Penal Law. We cannot agree.

Section 125.25 (subd 1, par [a]) of the Penal Law provides that it is an affirmative defense to the crime of murder in the second degree where "[t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” This defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although he is not free from responsibility for his crime, he ought to be punished less severely by reducing the crime upon conviction to. manslaughter in the first degree. (Penal Law, § 125.25, subd 1, par [a]; People v Patterson, 39 NY2d 288, 302, affd sub nom. Patterson v New York, 432 US 197; see, also, Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col L Rev 1425, 1446.)

In enacting section 125.25 (subd 1, par [a]) of the Penal Law, the Legislature adopted the language of the manslaughter provisions of. the Model Penal Code (see § 201.3, subd [1], par [b] [Tent Draft No. 9]). The only substantial distinction between the New York statute and the Model Penal Code is the designation by the Legislature of "extreme emotional disturbance” as an "affirmative defense”, thus placing the burden of proof on this issue upon defendant. (Penal Law, § 25.00, subd 2; People v Patterson, 39 NY2d 288, 301, supra.) The Model Penal Code formulation, however, as enacted by the Legislature, represented a significant departure from the prior law of this State.

The "extreme emotional disturbance” defense is an outgrowth of the "heat of passion” doctrine which had for some time been recognized by New York as a distinguishing factor *676between the crimes of manslaughter and murder. (See 1829 Rev Stat of New York, Part IV, ch I, tit II, §§ 10, 12, 18; L 1881, ch 676, § 189, subd 2; § 193, subd 2; Penal Law of 1909, § 1052, subd 2.) However, the new formulation is significantly broader in scope than the "heat of passion” doctrine which it replaced. (People v Patterson, 39 NY2d 288, 302-303, supra; People v Shelton, 88 Misc 2d 136, 141-142; Notes of the Staff of the State Commission on Revision of the Penal Law and Criminal Code, 1967 Gilbert, Criminal Law and Practice of New York, pp 1C-61-62; Model Penal Code, § 201.3, Comment, pp 46-47 [Tent Draft No. 9].)

For example, the "heat of passion” doctrine required that a defendant’s action be undertaken as a response to some provocation which prevented him from reflecting upon his actions. (See, e.g., People v Ferraro, 161 NY 365, 375.) Moreover, such reaction had to be immediate. The existence of a "cooling off” period completely negated any mitigating effect which the provocation might otherwise have had. (See, e.g., People v Florentino, 197 NY 560, 563.) In Patterson, however, this court recognized that "[a]n action influenced by an extreme emotional disturbance is not one that is necessarily so spontaneously undertaken. Rather, it may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore.” (39 NY2d, at p 303.) This distinction between the past and present law of mitigation, enunciated in Patterson, was expressly adopted by the trial court and properly applied in this case.

The thrust of defendant’s claim, however, concerns a question arising out of another perceived distinction between "heat of passion” and "extreme emotional disturbance” which was not directly addressed in Patterson, to wit: whether, assuming that the defense is applicable to a broader range of circumstances, the standard by which the reasonableness of defendant’s emotional reaction is to be tested must be an entirely subjective one. Defendant relies principally upon our decision in Patterson and upon the language of the statute to support his claim that the reasonableness of his "explanation or excuse” should be determined solely with reference to his own subjective viewpoint. Such reliance is misplaced.

In Patterson, this court was concerned with the question of whether the defendant could properly be charged with the burden of proving the affirmative defense of "extreme emo*677tional disturbance”. In deciding that the defendant could constitutionally be required to carry such a burden, we noted that "[t]he purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is. less culpable for having committed them.” (39 NY2d, at p 302.) We also noted that "[t]he differences between the present New York statute and its predecessor * * * can be explained by the tremendous advances made in psychology since 1881 and a willingness on the part of the courts, legislators, and the public to reduce the level of responsibility imposed on those whose capacity has been diminished by mental trauma.” (Id., at p 303.) These comments, however, were relevant to our decision only insofar as they demonstrated that the affirmative defense of "extreme emotional disturbance” is a mitigating factor which the defendant must prove as opposed to a substantive element of the crime of murder which the People must prove.

Defendant, however, would read Patterson as holding that all mental infirmity, short of insanity, must constitute "extreme emotional disturbance” if such infirmity causes the defendant to become emotionally disturbed and the defendant subjectively believed his disturbance had a reasonable explanation or excuse. While it is true that the court in Patterson recognized that "extreme emotional disturbance” as contemplated by the statute is a lesser form of mental infirmity than insanity,1 the court did not hold that all mental infirmities not arising to the level of insanity constitute "extreme emotional disturbance” within the meaning of the statute. This question was not presented to us in Patterson and we did not decide it. Defendant’s attempt to further extend our holding in Patterson to support the proposition that the reasonableness of the explanation or excuse for defendant’s emotional disturbance must be tested from the subjective viewpoint of defendant is *678completely unavailing, for that case had nothing whatever to do with this issue.

Having determined that our decision in Patterson does not require that reasonableness be tested with a completely subjective standard, we must now determine whether the language of the statute or the legislative history of the statute indicates that such a standard is required.

Section 125.25 (subd 1, par [a]) of the Penal Law states it is an affirmative defense to the crime of murder that "[t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” Whether the language of this statute requires a completely subjective evaluation of reasonableness is a question that has never been decided by this court, although it has been raised in our lower courts with diverse results. (Compare People v Shelton, 88 Misc 2d 136, supra, with People v Lyttle, 95 Misc 2d 879, 884.) Moreover, although several States have enacted identical or substantially similar statutes (see Conn Gen Stat Ann, § 53a-54, subd [a], par [1]; Del Code Ann, tit 11, § 641; Hawaii Penal Code, § 707-702, subd [2]; Ky Rev Stat, § 507.020, subd [1], par [a]; Rev Codes of Mont, § 94-5-103; ND Century Code, § 12.1-16-02; Ore Rev Stat, § 163.115; Utah Code Ann, § 76-5-205), only one decision of the highest court of any of our sister States which has addressed this question has been called to our attention (State v Elliott, 177 Conn 1) and that court expressly followed Justice Bentley Kassal’s well-reasoned opinion in People v Shelton (88 Misc 2d 136, supra).

Consideration of the Comments to the Model Penal Code, from which the New York statute was drawn, are instructive. (Model Penal Code, § 201.3, Comment [Tent Draft No. 9 (1959)].) The defense of "extreme emotional disturbance” has two principal components — (1) the particular defendant must have "acted under the influence of extreme emotional disturbance”, and (2) there must have been "a reasonable explanation or excuse” for such extreme emotional disturbance, "the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be”. The first requirement is wholly subjective — i.e., it involves a determina*679tion that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham.

The second component is more difficult to. describe — i.e., whether there was a reasonable explanation or excuse for the emotional disturbance. It was designed to sweep away "the rigid rules that have developed with respect to the sufficiency of particular types of provocation, such as the rule that words' alone can never be enough” (id., at pp 46-47), and "avoids a merely arbitrary limitation on the nature of the antecedent circumstances that may justify a mitigation” (id.). "The ultimate test, however, is objective; there must be 'reasonable’ explanation or excuse for the actor’s disturbance” (id., at p 41). In light of these comments and the necessity of articulating the defense in terms comprehensible to jurors, we conclude that the determination whether there was reasonable explanation or excuse for a particular emotional disturbance should be made by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable, so as to entitle him to a reduction of the crime charged from murder in the second degree to manslaughter in the first degree.2 We recognize that even such a description of the defense provides no precise guidelines and necessarily leaves room for the exercise of judgmental evaluation by the jury. This, however, appears to have been the intent of the draftsmen. "The purpose was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions, with the jury asked to show whatever empathy it can.” (Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col L Rev 1425, 1446.)

By suggésting a standard of evaluation which contains both subjective and objective elements, we believe that the drafters of the code adequately achieved their dual goals of broadening the "heat of passion” doctrine to apply to a wider range of circumstances while retaining some element of objectivity in *680the process. The result of their draftsmanship is a statute which offers the defendant a fair opportunity to seek mitigation without requiring that the trier of fact find mitigation in each case where an emotional disturbance is shown — or as the drafters put it, to offer "room for argument as to the reasonableness of the explanations or excuses offered.”

We note also that this interpretation comports with what has long been recognized as the underlying purpose of any mitigation statute. In the words of Mr. Justice Cardozo, referring to an earlier statute: "What we have is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent, the vehemence of the passion, seems to call irresistably for the exercise of mercy. I have no objection to giving them this dispensing power, but it should be given to them directly and not in a mystifying cloud of words.” (Cardozo, Law and Literature, pp 100-101.) In the end, we believe that what the Legislature intended in enacting the statute was to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows. Perhaps the chief virtue of the statute is that it allows such discretion without engaging in a detailed explanation of individual circumstances in which the statute would apply, thus avoiding the "mystifying cloud of words” which Mr. Justice Cardozo abhorred.

We conclude that the trial court, in this case, properly applied the statute. The court apparently accepted, as a factual matter, that defendant killed Miss Lo Consolo while under the influence of "extreme emotional disturbance”, a threshold question which must be answered in the affirmative before any test of reasonableness is required. The court, however, also recognized that in exercising its function as trier of fact, it must make a further inquiry into the reasonableness of that disturbance. In this regard, the court considered each of the mitigating factors put forward by defendant, including his claimed mental disability, but found that the excuse offered by defendant was so peculiar to him that it was unworthy of mitigation. The court obviously made a sincere effort to understand defendant’s "situation” and "the circumstances as defendant believed them to be”, but concluded that the murder in this case was the result of defendant’s malevolence rather than an understandable human response deserv*681ing of mercy. We cannot say, as a matter of law, that the court erred in so concluding. Indeed, to do so would subvert the purpose of the statute.

In our opinion, this statute would not require that the jury or the court as trier of fact find mitigation on any particular set of facts, but, rather, allows the finder of fact the opportunity to do so, such opportunity being conditional only upon a finding of extreme emotional disturbance in the first instance. In essence, the statute requires mitigation to be afforded an emotionally disturbed defendant only when the trier of fact, after considering a broad range of mitigating circumstances, believes that such leniency is justified. Since the trier of fact found that defendant failed to establish that he was acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse”, defendant’s conviction of murder in the second degree should not be reduced to the crime of manslaughter in the first degree.

Defendant also urges in support of reversal that the confessions upon which his conviction was predicated were involuntarily given to the police. However, the trial court examined the " 'totality of the circumstances’ ” of defendant’s arrest and subsequent confession (see People v Anderson, 42 NY2d 35, 38) and found, as a factual matter, that defendant’s oral and written statements were given to the police voluntarily. The Appellate Division affirmed this finding. Having carefully examined the record, we find nothing in the circumstances of this case which would lead us to conclude that defendant’s confession was involuntarily obtained as á matter of law.

Finally, defendant contends that his mother’s unsuccessful effort to contact him, aggravated in part by an apparently accidental dissemination of misinformation by the police,3 denied defendant his right to counsel. While it is true that when an attorney attempts to intercede in a criminal defendant’s behalf and is prevented from doing so by police misinformation, that defendant’s right to counsel is infringed (see, e.g., People v Garofolo, 46 NY2d 592, 600-601), no such infringement is present where, as here, a family member contacts police to report that her son was a "missing person”. Nor is there any evidence in the record to suggest that this is a *682case such as People v Bevilacqua (45 NY2d 508), where the record supported the inference that the police intentionally deprived the defendant of access to his family in an effort to obtain a confession. It is clear from the record that the defendant, a man of 27 years, consciously chose to confront his interrogators alone. Indeed, it is undisputed that defendant, after being informed of his constitutional rights, did not ever ask to speak with either counsel or any member of his family. Under these circumstances, we cannot say that defendant’s right to counsel has been infringed..

We have examined defendant’s remaining contentions and find them to be without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

*142Opinion

KENNARD, J.

On January 26, 2001, two dogs owned by defendant Marjorie Knoller and her husband, codefendant Robert Noel, attacked and killed Diane Whipple in the hallway of an apartment building in San Francisco. Defendant Knoller was charged with second degree murder (Pen. Code, § 189)1 and involuntary manslaughter (§ 192, subd. (b)); codefendant Noel, who was not present at the time of the attack on Whipple, was charged with involuntary manslaughter but not murder. Both were also charged with owning a mischievous animal that caused the death of a human being, in violation of section 399.

After a change of venue to Los Angeles County, a jury convicted defendants on all counts. Both moved for a new trial. (See § 1181, subd. 6 [a trial court may grant a new trial when “the verdict or finding is contrary to law or evidence”].) The trial court denied Noel’s motion. It granted Knoller’s motion in part, giving her a new trial on the second degree murder charge, but denying her motion for a new trial on the other two crimes of which she was convicted (involuntary manslaughter and possession of a mischievous animal that causes death).

With respect to Knoller, whose conviction of second degree murder was based on a theory of implied malice, the trial court took the position that, to be guilty of that crime, Knoller must have known that her conduct involved a high probability of resulting in the death of another. Finding such awareness lacking, the trial court granted Knoller’s motion for a new trial on the second degree murder conviction.

The trial court sentenced both defendants to four years’ imprisonment, the maximum term for involuntary manslaughter (§ 193, subd. (b)), staying the sentences for the section 399 violations. Defendants appealed from their convictions, and the People appealed from the order granting Knoller a new trial on the murder count. The Court of Appeal consolidated the appeals.

The Court of Appeal reversed the trial court’s order granting Knoller a new trial on the second degree murder charge. It remanded the case to the trial court for reconsideration of the new trial motion in light of the Court of Appeal’s holding that implied malice can be based simply on a defendant’s conscious disregard of the risk of serious bodily injury to another. In all other respects, the Court of Appeal affirmed the convictions of both defendants.

*143Both defendants petitioned this court for review. We granted only Knoller’s petition, limiting review to two questions: “(1) Whether the mental state required for implied malice includes only conscious disregard for human life or can it be satisfied by an awareness that the act is likely to result in great bodily injury,”2 and “(2) Whether the trial court abused its discretion in granting Knoller’s motion for new trial under Penal Code section 1181 [, subdivision 6].”

With respect to the first issue, we reaffirm the test of implied malice we set out in People v. Phillips (1966) 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353] and, as mentioned on page 152, post, reiterated in many later cases: Malice is implied when the killing is proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” (People v. Phillips, supra, at p. 587.) In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.

Measured against that test, it becomes apparent that the Court of Appeal set the bar too low, permitting a conviction of second degree murder, based on a theory of implied malice, if the defendant knew his or her conduct risked causing death or serious bodily injury. But the trial court set the bar too high, ruling that implied malice requires a defendant’s awareness that his or her conduct had a high probability of resulting in death, and that granting defendant Knoller a new trial was justified because the prosecution did not charge codefendant Noel with murder. Because the trial court used an incorrect test of implied malice, and based its decision in part on an impermissible consideration, we conclude that it abused its discretion in granting Knoller a new trial on the second degree murder count. It is uncertain whether the court would have granted the new trial had it used correct legal standards. We therefore remand the matter to the Court of Appeal, and direct it to return the case to the trial court with directions to reconsider defendant Knoller’s new trial motion in light of the views set out in this opinion.

*144I. Facts and Proceedings

In 1998, Pelican Bay State Prison inmates Paul Schneider and Dale Bretches, both members of the Aryan Brotherhood prison gang, sought to engage in a business of buying, raising, and breeding Presa Canario dogs. This breed of dog tends to be very large, weighing over 100 pounds, and reaching over five feet tall when standing on its hind legs. A document found in defendants’ apartment describes the Presa Canario as “a gripping dog . . . [f] . . . always used and bred for combat and guard . . . [and] used extensively for fighting . . . .”

Prisoners Schneider and Bretches relied on outside contacts, including Brenda Storey and Janet Coumbs, to carry out their Presa Canario business. Schneider told Coumbs that she should raise the dogs.

As of May 1990, Coumbs possessed four such dogs, named Bane, Isis, Hera, and Fury. Hera and Fury broke out of their fenced yard and attacked Coumbs’s sheep. Hera killed at least one of the sheep and also a cat belonging to Coumbs’s daughter. Coumbs acknowledged that Bane ate his doghouse and may have joined Fury in killing a sheep.

Defendants Knoller and Noel, who were attorneys representing a prison guard at Pelican Bay State Prison, met inmate Schneider at the prison sometime in 1999. In October 1999, defendants filed a lawsuit on behalf of Brenda Storey against Coumbs over the ownership and custody of the four dogs. Coumbs decided not to contest the lawsuit and to turn the dogs over to defendants. Coumbs warned Knoller that the dogs had killed Coumbs’s sheep, but Knoller did not seem to care.

Defendant Knoller thereafter contacted Dr. Donald Martin, a veterinarian for 49 years, and on March 26, 2000, he examined and vaccinated the dogs. With his bill to Knoller, Dr. Martin included a letter, which said in part: “I would be professionally amiss [sic] if I did not mention the following, so that you can be prepared. These dogs are huge, approximately weighing in the neighborhood of 100 pounds each. They have had no training or discipline of any sort. They were a problem to even get to, let alone to vaccinate. You mentioned having a professional hauler gather them up and taking them. . . . Usually this would be done in crates, but I doubt one could get them into anything short of a livestock trailer, and if let loose they would have a battle, [f] To add to this, these animals would be a liability in any household, reminding me of the recent attack in Tehama County to a boy by large dogs. *145He lost his aim and disfigured his face. The historic romance of the warrior dog, the personal guard dog, the gaming dog, etc. may sound good but hardly fits into life today.” Knoller thanked Dr. Martin for the information and said she would pass it on to her client.

On April 1, 2000, both defendants and a professional dog handler took custody of the dogs from Coumbs. Bane then weighed 150 pounds and Hera 130 pounds. Coumbs told both defendants that she was worried about the dogs, that Hera and Fury should be shot, and that she was also concerned about Bane and Isis.

Hera remained for a short time at a kennel in San Mateo County while Bane was sent to a facility in Los Angeles County. Both defendants soon became concerned for the health of the two dogs. On April 30, 2000, defendants brought Hera to their sixth-floor apartment at 2398 Pacific Avenue in San Francisco. Bane arrived in September 2000. Codefendant Noel purchased dog licenses, registering himself and Knoller as the dogs’ owners.

A later search of defendants’ apartment showed that they frequently exchanged letters with Pelican Bay inmates Schneider and Bretches. Over 100 letters were sent and received between March and December 2000, apparently under the guise of attorney-client correspondence.3 In the letters, defendants discussed a commercial breeding operation, considering various names such as GuerraHund Kennels, Wardog, and finally settling on Dog-O-War. Prisoners Schneider and Bretches’s notes on a Web site for the business described Bane as “Wardog,” and “Bringer of Death: Ruin: Destruction.”

Between the time defendants Noel and Knoller brought the dogs to their sixth-floor apartment in San Francisco and the date of the fatal mauling of Diane Whipple on January 26, 2001, there were about 30 incidents of the two dogs being out of control or threatening humans and other dogs. Neighbors mentioned seeing the two dogs unattended on the sixth floor and running down the hall. Codefendant Noel’s letters to prisoner Schneider confirmed this, mentioning one incident when defendant Knoller had to let go of the two dogs as they broke from her grasp and ran to the end of the hall. Noel *146described how the dogs even pushed past him and “took off side by side down the hall toward the elevator in a celebratory stampede!! 240 lbs. of Presa wall to wall moving at top speed!!!” In a letter to inmate Schneider, defendant Knoller admitted not having the upper body strength to handle Bane and having trouble controlling Hera.

When neighbors complained to defendants Noel and Knoller about the two dogs, defendants responded callously, if at all. In one incident, neighbors Stephen and Aimee West were walking their dog in a nearby park when Hera attacked their dog and “latched on” to the dog’s snout. Noel was unable to separate the dogs, but Aimee threw her keys at Hera, startling Hera and causing Hera to release her grip on the Wests’ dog. On another day, Stephen West was walking his dog when he encountered Noel with Bane. Bane lunged toward West’s dog, but Noel managed to pull Bane back. When Stephen West next saw Noel, West suggested that Noel muzzle the dogs and talk to dog trainer Mario Montepeque about training them; Noel replied there was no need to do so. Defendants Knoller and Noel later encountered Montepeque, who advised defendants to have their dogs trained and to use a choke collar. Defendants disregarded this advice. On still another occasion, when dog walker Lynn Gaines was walking a dog, Gaines told Noel that he should put a muzzle on Bane; Noel called her a “bitch” and said the dog Gaines was walking was the problem.

There were also instances when defendants’ two dogs attacked or threatened people. David Moser, a fellow resident in the apartment building, slipped by defendants Knoller and Noel in the hallway only to have their dog Hera bite him on the “rear end.” When he exclaimed, “Your dog just bit me,” Noel replied, “Um, interesting.” Neither defendant apologized to Moser or reprimanded the dog. Another resident, Jill Cowen Davis, was eight months pregnant when one of the dogs, in the presence of both Knoller and Noel, suddenly growled and lunged toward her stomach with its mouth open and teeth bared. Noel jerked the dog by the leash, but he did not apologize to Davis. Postal carrier John Watanabe testified that both dogs, unleashed, had charged him. He said the dogs were in a “snarling frenzy” and he was “terrified for [his] life.” When he stepped behind his mail cart, the dogs went back to Knoller and Noel. On still another occasion, the two dogs lunged at a six-year-old boy walking to school; they were stopped less than a foot from him.

One time, codefendant Noel himself suffered a severe injury to his finger when Bane bit him during a fight with another dog. The wound required surgery, and Noel had to wear a splint on his arm and have two steel pins placed in his hand for eight to 10 weeks.

*147Mauling victim Diane Whipple and her partner Sharon Smith lived in a sixth-floor apartment across a lobby from defendants. Smith encountered defendants’ two dogs as often as once a week. In early December 2000, Whipple called Smith at work to say, with some panic in her voice, that one of the dogs had bitten her. Whipple had come upon codefendant Noel in the lobby with one of the dogs, which lunged at her and bit her in the hand. Whipple did not seek medical treatment for three deep, red indentations on one hand. Whipple made every effort to avoid defendants’ dogs, checking the hallway before she went out and becoming anxious while waiting for the elevator for fear the dogs would be inside. She and Smith did not complain to apartment management because they wanted nothing to do with defendants Knoller and Noel.

On January 26, 2001, Whipple telephoned Smith to say she was going home early. At 4:00 p.m., Esther Birkmaier, a neighbor who lived across the hall from Whipple, heard dogs barking and a woman’s “panic-stricken” voice calling, “Help me, help me.” Looking through the peephole in her front door, Birkmaier saw Whipple lying facedown on the floor just over the threshold of her apartment with what appeared to be a dog on top of her. Birkmaier saw no one else in the hallway. Afraid to open the door, Birkmaier called 911, the emergency telephone number, and at the same time heard a voice yelling, “No, no, no” and “Get off.” When Birkmaier again approached her door, she could hear barking and growling directly outside and a banging against a door. She heard a voice yell, “Get off, get off, no, no, stop, stop.” She chained her door and again looked through the peephole. Whipple’s body was gone and groceries were strewn about the hallway. Birkmaier called 911 a second time.

At 4:12 p.m., San Francisco Police Officers Sidney Laws and Leslie Forrestal arrived in response to Birkmaier’s telephone calls. They saw Whipple’s body in the hallway; her clothing had been completely ripped off, her entire body was covered with wounds, and she was bleeding profusely. Defendant Knoller and the two dogs were not in sight.

The officers called for an ambulance. Shortly thereafter, defendant Knoller emerged from her apartment. She did not ask about Whipple’s condition but merely told the officers she was looking for her keys, which she found just inside the door to Whipple’s apartment.

An emergency medical technician administered first aid to Whipple, who had a large, profusely bleeding wound to her neck. The wound was too large to halt the bleeding, and Whipple’s pulse and breathing stopped as paramedics arrived. She was revived but died shortly after reaching the hospital.

*148An autopsy revealed over 77 discrete injuries covering Whipple’s body “from head to toe.” The most significant were lacerations damaging her jugular vein and her carotid artery and crushing her larynx, injuries typically inflicted by predatory animals to kill their prey. The medical examiner stated that although earlier medical attention would have increased Whipple’s chances of survival, she might ultimately have died anyway because she had lost one-third or more of her blood at the scene. Plaster molds of the two dogs’ teeth showed that the bite injuries to Whipple’s neck were consistent with Bane’s teeth.

Animal control officer Andrea Runge asked defendant Knoller to sign over custody of the dogs for euthanasia. Knoller, whom Runge described as “oddly calm,” agreed to sign over Bane, but she refused to sign over Hera for euthanasia and she refused to help the animal control officers with the animals, saying she was “unable to handle the dogs.” When tranquilizer darts malfunctioned and failed to quiet Bane, “come-along” poles were used by animal control officers backed up by officers with guns drawn. Hera too was controlled by officers with “come-along” poles.

On February 8, 2001, both defendants appeared on the television show Good Morning America and basically blamed mauling victim Whipple for her own death. Defendant Knoller claimed that Whipple had already opened her apartment door when something about her interested Bane. He broke away, pulled Knoller across the lobby, and jumped up on Whipple, putting his paws on either side of her. Knoller said she pushed Whipple into Whipple’s apartment, fell on top of Whipple, and then tried to shield Whipple with her own body. But Whipple’s struggles must have been misinterpreted by the dog, and when Whipple struck Knoller with her fist, the dog began to bite Whipple. Knoller claimed that Whipple had ample opportunity to just slam the door of her apartment or stay still on the floor.

Codefendant Noel did not testify, but he presented evidence of positive encounters between the two dogs and veterinarians, friends, and neighbors. Defendant Knoller did testify in her own defense. She referred to herself, her husband, and Pelican Bay prisoner Schneider as the “triad,” and she spoke of Schneider as her “son.” The two dogs had become a focal point in the relationship. She denied reading literature in the apartment referring to the vicious nature of the dogs. She thought the dogs had no personality problems requiring a professional trainer. She denied receiving or otherwise discounted any warnings about the two dogs’ behavior and she maintained that virtually all the witnesses testifying to incidents with the dogs were lying. She said she never walked both dogs together. Ordinarily, she would walk Hera and codefendant Noel would walk Bane, because she had insufficient body strength to control Bane. But after Noel was injured while breaking up a fight *149between Bane and another dog, Knoller would sometimes walk Bane, always on a leash. She said she had just returned from walking Bane on the roof of the apartment building, and had opened the door to her apartment while holding Bane’s leash, when Bane dragged her back across the lobby toward Whipple, who had just opened the door to her own apartment. The other dog, Hera, left defendants’ apartment and joined Bane, who attacked Whipple. Knoller said she threw herself on Whipple to save her. She denied that Hera participated in the attack. She acknowledged not calling 911 to get help for Whipple.

Asked whether she denied responsibility for the attack on Whipple, Knoller gave this reply: “I said in an interview that I wasn’t responsible but it wasn’t for the—it wasn’t in regard to what Bane had done, it was in regard to knowing whether he would do that or not. And I had no idea that he would ever do anything like that to anybody. How can you anticipate something like that? It’s a totally bizarre event. I mean how could you anticipate that a dog that you know that is gentle and loving and affectionate would do something so horrible and brutal and disgusting and gruesome to anybody? How could you imagine that happening?”

In rebuttal, the prosecution presented evidence that the minor character of defendant Knoller’s injuries—principally bruising to the hands—indicated that she had not been as involved in trying to protect mauling victim Whipple as she had claimed. Dr. Randall Lockwood, the prosecution’s expert on dog behavior, testified that good behavior by a dog on some occasions does not preclude aggressive and violent behavior on other occasions, and he mentioned the importance of training dogs such as Bane and Hera not to fight.

The jury found Knoller guilty of second degree murder; it also found both Knoller and Noel guilty of involuntary manslaughter and owning a mischievous animal that caused the death of a human being. Both defendants moved for a new trial. The trial court denied Noel’s motion. We quote below the pertinent statements by the trial court in granting Knoller’s motion for a new trial on the second degree murder count.

The trial court observed: “The law requires that there be a subjective understanding on the part of the person that on the day in question—and I do not read that as being January 26th, 2001 because by this time, with all of the information that had come out dealing with the dogs, the defendants were fully on notice that they had a couple of wild, uncontrollable and dangerous dogs that were likely going to do something bad. [f] Is the ‘something bad’ death? That is the ultimate question in the case. There is no question but that the something bad was going to be that somebody was going to be badly hurt. I defy either defendant to stand up and tell me they had no idea that *150those dogs were going to hurt somebody one day. But can they stand up and say that they knew subjectively—not objectively and that’s an important distinction—that these dogs were going to stand up and kill somebody?” (Italics added.)

The trial court continued: “I am guided by a variety of principles. One of them is that public emotion, public outcry, feeling, passion, sympathy do not play a role in the application of the law. The other is that I am required to review all of the evidence and determine independently rather than as a jury what the evidence showed. I have laid out most of the evidence as it harms the defendants in this case. Their conduct from the time that they got the dogs to the time—to the weeks after Diane Whipple’s death was despicable. . . .

“There was one time on the stand, Ms. Knoller, when I truly believed what you said. You broke down in the middle of a totally scripted answer and you actually, instead of crying, you actually got mad and you said you had no idea that this dog could do what he did and pounded the table. I believed you. That was the only time, but I did believe you.” The court then described the definition of second degree murder as requiring that one “subjectively knows, based on everything, that the conduct that he or she is about to engage in has a high probability of death to another human being.” (Italics added.)

The trial court went on: “What we have in this case as it relates to Ms. Knoller is the decision to take the dog outside, into the hallway, up to the roof, go to the bathroom, bring it back down and put it in the apartment. There was no question but that taking the dog out into the hallway by that very act exposed other people in the apartment, whether they are residents there or guests, invitees to what might happen with the dog. When you take everything as a totality, the question is whether or not as a subjective matter and as a matter of law Ms. Knoller knew that there was a high probability that day, or on the day before on the day after,—I reject totally the argument of the defendants that she had to know when she walked out the door—she was going to kill somebody that morning. The Court finds that the evidence does not support it.” (Italics added.)

The trial court concluded it had “no choice, . . . taking the Legislature’s scheme, the evidence that was received, as despicable as it is, but to determine not that [defendant Knoller] is acquitted of second degree murder but to find that on the state of the evidence, I cannot say as a matter of law that she subjectively knew on January 26th that her conduct was such that a human being was likely to die.” (Italics added.)

The trial court mentioned another consideration: “The Court also notes a great troubling feature of this case that Mr. Noel was never charged [with *151murder] as Ms. Knoller was. In the Court’s view, given the evidence, Mr. Noel is more culpable than she. Mr. Noel personally knew that she could not control those dogs. He could not control those dogs. Mr. Noel was substantially haughtier than she was. In brushing off all of the incidents that happened out in the street, Mr. Noel knew as a theological certainty that that dog, which had recently been operated on, was taking medication that had given it diarrhea, was going to go out into the hallway or out into the street possibly, at the hands of Ms. Knoller. He . . . left her there to do that. [f] . . . And yet Mr. Noel was not charged [with murder]. Equality of sentencing and the equal administration of justice is an important feature in any criminal court. That played a role as well.” The trial court then granted defendant Knoller’s motion for a new trial on the second degree murder count.

As noted earlier, both defendants as well as the prosecution appealed. The Court of Appeal reversed the trial court’s order granting Knoller’s motion for a new trial on the second degree murder count. It disagreed with the trial court that a second degree murder conviction, based on a theory of implied malice, required that Knoller recognized “her conduct was such that a human being was likely to die.” The Court of Appeal held that a second degree murder conviction can be based simply on a defendant’s “subjective appreciation and conscious disregard of a likely risk of . . . serious bodily injury.” In all other respects, the Court of Appeal affirmed both defendants’ convictions.

II. The Elements of Implied Malice

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188.) At issue here is the definition of “implied malice.”

Defendant Knoller was convicted of second degree murder as a result of the killing of Diane Whipple by defendant’s dog, Bane. Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. (See §§ 187, subd. (a), 189.) Section 188 provides: “[Mjalice may be either express or implied. It is express when there is manifested a deliberate intention 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.”

The statutory definition of implied malice, a killing by one with an “abandoned and malignant heart” (§ 188), is far from clear in its meaning. Indeed, an instruction in the statutory language could be misleading, for it “could lead the jury to equate the malignant heart with an evil disposition or *152a despicable character” (People v. Phillips, supra, 64 Cal.2d at p. 587) instead of focusing on a defendant’s awareness of the risk created by his or her behavior. “Two lines of decisions developed, reflecting judicial attempts ‘to translate this amorphous anatomical characterization of implied malice into a tangible standard a jury can apply.’ ” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103 [13 Cal.Rptr.2d 864, 840 P.2d 969], quoting People v. Protopappas (1988) 201 Cal.App.3d 152, 162-163 [246 Cal.Rptr. 915].) Under both lines of decisions, implied malice requires a defendant’s awareness of the risk of death to another.

The earlier of these two lines of decisions, as this court observed in People v. Nieto Benitez, supra, 4 Cal.4th at pages 103-104, originated in Justice Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 470, 480 [261 P.2d 1], which stated that malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (We here refer to this as the Thomas test.) The later line dates from this court’s 1966 decision in People v. Phillips, supra, 64 Cal.2d at page 587: Malice is implied when the killing is proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” (The Phillips test.)

In People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279], we held that these two definitions of implied malice in essence articulated the same standard. Concerned, however, that juries might have difficulty understanding the Thomas test’s concept of “wanton disregard for human life,” we later emphasized that the “better practice in the future is to charge juries solely in the straightforward language of the ‘conscious disregard for human life’ definition of implied malice,” the definition articulated in the Phillips test. (People v. Dellinger (1989) 49 Cal.3d 1212, 1221 [264 Cal.Rptr. 841, 783 P.2d 200].) The standard jury instructions thereafter did so. (See CALJIC No. 8.11; Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 520.) Since 1989, our decisions have articulated the standard we set out in Dellinger and in CALJIC No. 8.11. (See, e.g., People v. Randle (2005) 35 Cal.4th 987, 994 [28 Cal.Rptr.3d 725, 111 P.3d 987]; People v. Taylor (2004) 32 Cal.4th 863, 867-868 [11 Cal.Rptr.3d 510, 86 P.3d 881]; People v. Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666]; People v. Hansen (1994) 9 Cal.4th 300, 308 [36 Cal.Rptr.2d 609, 885 P.2d 1022]; People v. Whitfield (1994) 7 Cal.4th 437, 450 [27 Cal.Rptr.2d 858, 868 P.2d 272]; People v. Nieto Benitez, supra, 4 Cal.4th at pp. 104, 111.) The trial court here instructed the jury in the language of CALJIC No. 8.11.

*153III. The Court of Appeal’s Test for Implied Malice

As discussed in the preceding part, the great majority of this court’s decisions establish that a killer acts with implied malice only when acting with an awareness of endangering human life. This principle has been well settled for many years, and it is embodied in the standard jury instruction given in murder cases, including this one. The Court of Appeal here, however, held that a second degree murder conviction, based on a theory of implied malice, can be based simply on a defendant’s awareness of the risk of causing serious bodily injury to another.

In support of that view, the Court of Appeal pointed to three decisions of this court: People v. Conley (1966) 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911] (Conley), People v. Poddar (1974) 10 Cal.3d 750 [111 Cal.Rptr. 910, 518 P.2d 342] (Poddar), and People v. Coddington (2000) 23 Cal.4th 529 [97 Cal.Rptr.2d 528, 2 P.3d 1081] (Coddington). We discuss each case below.

In Conley, supra, 64 Cal.2d 310, the defendant, after consuming copious quantities of alcohol, went to the home of his former lover and her husband, where he shot and killed both of them. He was convicted of two counts of first degree murder. The issue on appeal was whether the trial court should have instructed the jury on diminished mental capacity caused by intoxication. This court held that it should have so instructed because “[a]n awareness of the obligation to act within the general body of laws regulating society . . . is included in the statutory definition of implied malice in terms of the abandoned and malignant heart . . . .” (Id. at p. 322.) In explaining that holding, Conley stated that a person who carefully weighs the course of action he is about to take and chooses to kill his victim, after considering the reasons for and against it, “is normally capable also of comprehending the duty society places on all persons to act within the law.” (Ibid.) Conley continued: “If, despite such awareness, he does an act that is likely to cause serious injury or death to another, he exhibits that wanton disregard for human life or antisocial motivation that constitutes malice aforethought.” (Ibid., italics added.)4 It is this sentence from Conley on which the Court of Appear relied. But that language from Conley described the defendant’s act (the objective component of implied malice), not the defendant’s mental state (the subjective component of implied malice); it is therefore irrelevant to the issue here, which concerns the subjective component—whether the defendant must be aware of the risk of death or only a risk of serious bodily injury.

*154Conley, supra, 64 Cal.2d 310, did not discuss whether implied malice could be based merely on a defendant’s awareness of the risk of serious bodily injury to another but not the risk of death resulting from the defendant’s actions. That issue, presented here, did not arise in Conley, because there the defendant, who said he was going to kill the victims and did so, could not claim he was aware only of the risk of causing serious bodily injury.

In cases decided shortly before and after Conley, we reiterated the established definition of implied malice as requiring an awareness of the risk that the defendant’s conduct will result in the death of another. One year before Conley was filed, we stated in People v. Washington (1965) 62 Cal.2d 777, 780, 782 [44 Cal.Rptr. 442, 402 P.2d 130], that implied malice required a “conscious disregard for life.” Conley did not at all suggest that it intended to depart from the view expressed in Washington. And two months after Conley, this court in People v. Phillips, supra, 64 Cal.2d at page 582, endorsed its earlier statement in Washington that implied malice requires a “conscious disregard for life.’'’ (Italics added.)

We now turn to Poddar, supra, 10 Cal.3d 750, the second of the three decisions that the Court of Appeal cited. In that case, the defendant went to the home of a woman he had dated casually, shot her with a pellet gun, and then killed her with a knife. He was convicted of second degree murder. This court held that the trial court’s jury instruction on second degree murder was defective because it did not explain the concept of diminished capacity as set out in Conley, supra, 64 Cal.2d 310. (Poddar, supra, 10 Cal.3d at pp. 757-759.) In its discussion of diminished capacity, Poddar stated that to prove implied malice, “it must be shown that the accused was both aware of his duty to act within the law and acted in a manner likely to cause death or serious bodily injury despite such awareness.” (Id. at p. 758, italics added.) As in Conley, Poddar referred to serious bodily injury in describing the defendant’s act, the objective component of implied malice. Poddar did not say that the defendant’s mental state, the subjective component of implied malice, at issue here, could be satisfied by proof that the defendant acted with an awareness that his conduct could cause serious bodily injury. Indeed, the defendant in Poddar never claimed that he was unaware that his acts could cause death.

Even if the above discussed language from Conley, supra, 64 Cal.2d at page 322, and from Poddar, supra, 10 Cal.3d at page 758, could be viewed as implying that a second degree murder conviction, on a theory of implied malice, could be based simply on a defendant’s awareness of the risk of causing serious bodily injury, rather than death, that language would lack authoritative force. “ ‘It is axiomatic that language in a judicial opinion is to *155be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.’ ” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 [36 Cal.Rptr.3d 495, 123 P.3d 931], quoting Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195 [81 Cal.Rptr.2d 521, 969 P.2d 613].) “An appellate decision is not authority for everything said in the court’s opinion but only ‘for the points actually involved and actually decided.’ ” (Santisas v. Goodin (1998) 17 Cal.4th 599, 620 [71 Cal.Rptr.2d 830, 951 P.2d 399].) Because the facts and issues in Conley, supra, 64 Cal.2d 310, and in Poddar, supra, 10 Cal.3d 750, did not encompass the question whether implied malice could be based on a defendant’s awareness of the risk of serious bodily injury alone, the language the Court of Appeal cited from Conley and Poddar lacks authoritative force.

This brings us to Coddington, supra, 23 Cal.4th 529, the last in the trio of decisions relied on by the Court of Appeal. In that case, the defendant lured teenage girls to his mobilehome by telling them they would star in an antidrug video, and then raped them and committed other sexual offenses. He killed two older women who had accompanied the girls as chaperones. The defendant was convicted of two counts of first degree murder with special circumstances, as well as various other offenses, and he was sentenced to death.

Among the many issues the defendant in Coddington raised on appeal was a claim that the trial court had erred in not instructing the jury on second degree murder based on implied malice. Responding to that claim, the Attorney General argued in Coddington that such an instruction was not needed because there was no evidence that the defendant’s offense was less than first degree murder, and that the defendant’s conduct proved that he “acted with actual or presumptive knowledge that serious bodily injury was likely to occur.” (Coddington, supra, 23 Cal.4th at p. 592, italics added.) This court rejected the Attorney General’s argument, explaining that such a mental state (actual or presumptive knowledge that serious bodily injury is likely to occur) “permits an inference of implied malice . . . and does not support a conclusion that no instruction on second degree murder on a theory of implied malice was necessary.” (Ibid.)

Notwithstanding Coddington’s offhand comment that knowledge of the risk of serious bodily injury permits an inference of implied malice, Coddington reiterated the established rule that a trial court must instruct on second degree murder based on implied malice whenever there is evidence “from which the jury could have inferred that appellant acted without intent to kill even though his conduct posed a high risk of death.” (Coddington, supra, 23 Cal.4th at p. 593, italics added.) Thus, Coddington’s offhand comment cannot be viewed as implicitly overruling the decisions of this court *156discussed earlier (see, ante, at p. 152) declaring that implied malice requires an awareness of the risk of death.

In sum, the three decisions on which the Court of Appeal relied lack persuasive force. Neither Conley, supra, 64 Cal.2d 310, nor Poddar, supra, 10 Cal.3d 750, addressed the issue presented here: whether implied malice can be based on a defendant’s awareness of the risk of great bodily injury but not death resulting from the defendant’s actions. With respect to the comment in Coddington, supra, 23 Cal.4th at page 592, suggesting that knowledge of the likelihood of serious bodily injury permits an inference of implied malice, it is inconsistent not only with the holding in that case but also with the views expressed in other decisions of this court. (See, ante, at p. 152.) We conclude that a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life. In holding that a defendant’s conscious disregard of the risk of serious bodily injury suffices to sustain such a conviction, the Court of Appeal erred.

IV. The Trial Court’s Grant of a New Trial on the Second Degree Murder Charge

We now turn to the second issue raised by the petition for review—whether the trial court abused its discretion in granting defendant Knoller a new trial on the second degree murder charge. Such an abuse of discretion arises if the trial court based its decision on impermissible factors (see People v. Carmody (2004) 33 Cal.4th 367, 378 [14 Cal.Rtpr.3d 880, 92 P.3d 369]) or on an incorrect legal standard (see Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435—436 [97 Cal.Rptr.2d 179, 2 P.3d 27]; In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [146 Cal.Rptr. 623, 579 P.2d 514]).

In granting Knoller a new trial, the trial court properly viewed implied malice as requiring a defendant’s awareness of the danger that his or her conduct will result in another’s death and not merely in serious bodily injury. (See, ante, at pp. 149-151.) But the court’s ruling was legally flawed in other respects. As we explain below, the trial court based its ruling on an inaccurate definition of implied malice, and it inappropriately relied on the prosecutor’s failure to charge codefendant Noel with murder.

As discussed earlier in part II, this court before its decision in People v. Dellinger, supra, 49 Cal.3d 1212, had defined implied malice in two similar but somewhat different ways. Under the Thomas test, malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (People v. Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of *157Traynor, J.); see also Poddar, supra, 10 Cal.3d at pp. 756-757.) Under the Phillips test (People v. Phillips, supra, 64 Cal.2d at p. 587), malice is implied when the killing is proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” In People v. Dellinger, supra, 49 Cal.3d 1212, we observed that although these two tests “articulated one and the same standard” (id. at p. 1219), the Thomas test contained “obscure phraseology” and had “become a superfluous charge,” so that the “better practice in the future” would be for trial courts to instruct juries in the “straightforward language” of the Phillips test (Dellinger, at p. 1221).5

Here, the trial court properly instructed the jury in accordance with the Phillips test. But when the court evaluated defendant Knoller’s new trial motion, it relied on language from the Thomas test, and as explained below, its description of that test was inaccurate. The court stated that a killer acts with implied malice when the killer “subjectively knows, based on everything, that the conduct that he or she is about to engage in has a high probability of death to another human being” and thus the issue in this case was “whether or not as a subjective matter and as a matter of law Ms. Knoller knew that there was a high probability” that her conduct would result in someone’s death. (Italics added.) But “high probability of death” is the objective, not the subjective, component of the Thomas test, which asks whether the defendant’s act or conduct “involves a high degree of probability that it will result in death.” (People v. Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.).) The subjective component of the Thomas test is whether the defendant acted with “a base, antisocial motive and with wanton disregard for human life.” (Ibid.) Nor does the Phillips test require a defendant’s awareness that his or her conduct has a high probability of causing death. Rather, it requires only that a defendant acted with a “ ‘conscious disregard for human life’ ” (People v. Dellinger, supra, 49 Cal.3d at p. 1221; see People v. Phillips, supra, 64 Cal.2d at p. 587).

As just shown, in treating the objective component of the Thomas test as the subjective component of that test, the trial court applied an erroneous definition of implied malice in granting defendant Knoller a new trial on the second degree murder charge.

In ruling on Knoller’s motion for a new trial, the trial court also commented that, in its view, codefendant Noel was more culpable than defendant Knoller, and that the district attorney’s failure to charge Noel with *158murder was a “troubling feature of this case” that “played a role as well” in the court’s decision to grant Knoller a new trial on the second degree murder charge. Dissimilar charging of codefendants, however, is not among the grounds for a new trial in section 1181. Although section 1181 states that a defendant’s new trial motion may be granted only on the grounds stated in that section, several courts have held that new trials may nonetheless be granted on grounds not enumerated in the statute when necessary to protect a defendant’s constitutional right to a fair trial. (See, e.g., People v. Oliver (1975) 46 Cal.App.3d 747, 751 [120 Cal.Rptr. 368] [judicial misconduct]; People v. Davis (1973) 31 Cal.App.3d 106, 109 [106 Cal.Rptr. 897] [unexpected absence of witness].) No published decision, however, has ever approved granting a new trial based on differential treatment of defendants. (See generally People v. Belmontes (1988) 45 Cal.3d 744, 810-813 [248 Cal.Rptr. 126, 755 P.2d 310] [disposition of codefendant’s case is irrelevant to jury’s determination at penalty phase of capital case].)

We specifically do not address whether a new trial could be granted on such a ground, an issue that would involve significant separation of powers considerations. Even assuming a new trial could be granted on such a ground, it is not justified here. Defendant Knoller and codefendant Noel were not similarly situated with regard to their dog Bane’s fatal mauling of Whipple in the hallway of the apartment building where they all lived. The immediate cause of Whipple’s death was Knoller’s own conscious decision to take the dog Bane unmuzzled through the apartment building, where they were likely to encounter other people, knowing that Bane was aggressive and highly dangerous and that she could not control him. Bringing a more serious charge against the person immediately responsible for the victim’s death was a permissible exercise of prosecutorial discretion, not grounds for a new trial.

V. Conclusion and Disposition

In sum, the trial court abused its discretion in granting defendant Knoller a new trial on the second degree murder charge. That court erroneously concluded both that Knoller could not be guilty of murder, based on a theory of implied malice, unless she appreciated that her conduct created a high probability of someone’s death, and that a new trial was justified because the prosecution did not charge codefendant Noel with murder. It is uncertain whether the trial court would have reached the same result using correct legal standards. Moreover, the Court of Appeal, in reversing the trial court’s order, also erred, mistakenly reasoning that implied malice required only a showing that the defendant appreciated the risk of serious bodily injury. Under these circumstances, we conclude that the matter should be returned to the trial court to reconsider its new trial order in light of the views set out in this opinion.

*159The Court of Appeal’s judgment is reversed and the matter is remanded to that court, with directions to return the case to the trial court for reconsideration of defendant Knoller’s new trial motion in accord with the views expressed in this opinion.

George, C. J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.

The petition of appellant The People for a rehearing was denied July 18, 2007.

Opinion

FRANSON, Acting P. J.

Introduction

This appeal challenges the California felony-murder rule as it applies to an unintentionally caused death during a high speed automobile chase following the commission of a nonviolent, daylight burglary of an unattended motor vehicle. Solely by force of precedent we hold that the felony-murder rule applies and respondents can be prosecuted for first degree murder.

Statement of the Case and Facts

Respondents were charged by information with murder (Pen. Code, § 187) and several counts of burglary. In response to a Penal Code section 995 motion to set aside the information, the trial court dismissed the murder charge and amended the information to substitute a vehicular manslaughter charge under Penal Code section 192, subdivision 3, paragraph (a). The People have appealed.

The pertinent facts are as follows: On Sunday, February 20, 1977, at about 8:30 a.m., uniformed Cadet Police Officer Guy Ballesteroz was on routine patrol in his vehicle, proceeding southbound on Blackstone Avenue in the City of Fresno. As the officer approached the Fresno Dodge car lot, he saw an older model Plymouth parked in front of the lot. He also saw respondents rolling two tires apiece toward the Plymouth. *622His suspicions aroused, the officer radioed the dispatcher and requested that a police unit be sent.

Officer Ballesteroz kept the respondents under observation as he proceeded past the car lot and stopped at the next intersection. As he reached that point he saw the respondents stop rolling the tires and walk to the Plymouth on the street. Ballesteroz made a U-turn and headed northbound on Blackstone. The respondents got into the Plymouth and drove away “really fast.” Thereafter, a high speed chase ensued which eventually resulted in respondents’ car running a red light at the intersection of Blackstone and Barstow Avenues and striking another automobile which had entered the intersection. The driver of the other automobile was killed. Respondents were arrested at the scene. The chase from the car lot covered some 7 miles and lasted approximately 10 to 12 minutes. During the chase the respondents’ car narrowly missed colliding with several other cars including two police vehicles that were positioned to block their escape.

Later investigation revealed that four locked Dodge vans at the car lot had been forcibly entered and the spare tires removed. Fingerprints from both of the respondents were found on the jack stands in some of the vans.

Respondents May Be Prosecuted for First Degree Felony Murder

Penal Code section 189 provides, in pertinent part: “All murder . . . which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbeiy, burglary, mayhem, or [lewd acts with a minor], is murder of the first degree; . . .” (Italics added.) This statute imposes strict liability for deaths committed in the course of one of the enumérated felonies whether the killing was caused intentionally, negligently, or merely accidentally. (People v. Cantrell (1973) 8 Cal.3d 672, 688 [105 Cal.Rptr. 792, 504 P.2d 1256]; People v. Coefield (1951) 37 Cal.2d 865, 868 [236 P.2d 570].) Malice is imputed and need not be shown. (People v. Burton (1971) 6 Cal.3d 375, 384-385 [99 Cal.Rptr. 1, 491 P.2d 793]; People v. Ireland (1969) 70 Cal.2d 522, 538 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R. 3d 1323].) The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. (People v. Washington (1965) 62 Cal.2d 111, 781 [44 Cal.Rptr. 442, 402 P.2d 130]; see Holmes, The Common Law, pp. 56-57.)

*623Burglary falls expressly within the purview of California’s first degree felony-murder rule. Any burglaiy within Penal Code section 459 is sufficient to invoke the rule. (People v. Talbot (1966) 64 Cal.2d 691, 705 [51 Cal.Rptr. 417, 414 P.2d 633]; People v. Thomas (1975) 44 Cal.App.3d 573, 575 [117 Cal.Rptr. 855]; People v. Earl (1973) 29 Cal.App.3d 894, 900 [105 Cal.Rptr. 831].) Whether or not the particular burglary was dangerous to human life is of no legal import. (Earl, supra.)

The meaning of murder committed “in the perpetration of’ a felony within Penal Code section 189 also is clear. The Supreme Court has stated that this language does not require a strict causal relation between the felony and the killing; it is sufficient if both are “parts of one continuous transaction.” (People v. Welch (1972) 8 Cal.3d 106, 118 [104 Cal.Rptr. 217, 501 P.2d 225]; People v. Mason (1960) 54 Cal.2d 164, 169 [4 Cal.Rptr. 841, 351 P.2d 1025].) Flight following a felony is considered part of the same transaction as long as the felon has not reached a “place of temporary safety.” (People v. Salas (1972) 7 Cal.3d 812, 822 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832]; People v. Boss (1930) 210 Cal. 245, 250 [290 P. 881].) Whether the defendant has reached such a place of safety is a question of fact for the jury. Respondents’ reliance on People v. Ford (1966) 65 Cal.2d 41, 56 [52 Cal.Rptr. 228, 416 P.2d 132] for the proposition that this is a legal question is misplaced. In Ford, the court held that it was a question of law in that particular case because many hours had elapsed between the felony and the killing, and there was no evidence that the defendant was attempting to escape at the time of the killing.

Respondents argue that although California has applied the felony-murder rule to escaping robbers no case has applied the rule to escaping burglars. They cite dicta in People v. Boss, supra, 210 Cal. 245, 251, to support the distinction between those escaping from robberies: “Robbery, unlike burglary is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time. The escape of the robbers with the loot, by means of arms, necessarily is as important to the execution to the plan as gaining possession of the property.” (Id., at p. 251.)

This distinction does not withstand analysis. A burglary predicated on theft can be committed with equal or greater violence than a robbery, and leaving the scene with the stolen property is equally important. Moreover, the Boss dicta has not been cited to support such a distinction in any other California case. Furthermore, other states do not draw a distinction *624between burglary and robbery flight. To the contrary, the felony-murder rule has been applied to unintended deaths in the course of burglary flight. (See, e.g., People v. Hickman (1973) 12 Ill.App.3d 412 [297 N.E.2d 582]—flight by armed defendants who had burglarized warehouse in nighttime; Gore v. Leeke (1973) 261 S.C. 308 [199 S.E.2d 755]; Commonwealth v. Carey (1951) 368 Pa. 157 [82 A.2d 240]—armed defendant fled from residence he burglarized at night; State v. Ryan (1937) 192 Wash. 160 [73 P.2d 735]; Lakes v. State (1937) 61 Okla.Crim. 252 [67 P.2d 457];State v. Adams (1936) 339 Mo. 926 [98 S.W.2d 632, 108 A.L.R. 838]—defendants fleeing after burglarizing a filling station in nighttime; Francis v. State (1919) 104 Neb. 5 [175 N.W. 675]—armed defendants fleeing after burglarizing store buildings; Conrad v. State (1906) 75 Ohio St. 52 [78 N.E. 957]—fleeing defendants had burglarized a home; see generally Felony-Murder Rule—“Termination of Felony” (1974) 58 A.L.R.3d 851, 962-975.) Thus, the trial court erred in striking the murder count premised upon the felony-murder rule.

We deem it appropriate, however, to make a few observations concerning the irrationality of applying the felony-murder rule in the present case. In People v. Washington, supra, 62 Cal.2d 777, 783, a case limiting the rule’s application to killings committed by the defendant or his accomplice, our Supreme Court stated: “The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. [Citations.] Although it is the law in this state (Pen. Code, § 189), it should not be extended beyond any rational function that it is designed to serve.” (Italics added.) In People v. Phillips (1966) 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353], the court elaborated: “We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. Indeed, the rule itself has been abandoned by the courts of England, where it had its inception. It has been subjected to severe and sweeping criticism.” (Id., at pp. 582-583, fns. omitted.) The Phillips court explained, “The felony-murder doctrine has been censured not only because it artificially imposes malice as to one crime because of defendant’s commission of another but because it anachronistically resurrects from a bygone age a ‘barbaric’ concept that has been discarded in the place of its origin. . . .” (Id., at p. 583, fn. 6.)

The Supreme Court has recently reaffirmed its dislike of the felony-murder rule in People v. Henderson (1977) 19 Cal.3d 86, 92-93 [137 Cal.Rptr. 1, 560 P.2d 1180]. The literature is replete with criticism of the *625rule. See, for example, Perkins on Criminal Law (2d ed. 1969) page 44; Packer, The Case for Revision of the Penal Code (1961) 13 Stan. L. Rev. 252, 259.

In People v. Satchell (1971) 6 Cal.3d 28 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383], our Supreme Court reversed a second degree felony-murder conviction arising out of a killing by an ex-felon in possession of a concealed weapon (a sawed-off shotgun) in violation of Penal Code section 12021. The court concluded that the felony must be viewed in the abstract and not on the basis of the particular facts of the case; that the carrying of a concealed weapon by an ex-felon is not a felony inherently dangerous to human life “. . . because we can conceive of such a vast number of situations wherein it would be grossly illogical to impute malice, . . .” (6 Cal.3d at p. 40.) The court accepted the defendant’s argument that of the many activities that are punishable as felonies only some clearly manifest a propensity for dangerous acts by the perpetrator; hence, it cannot be said theoretically that a felon who is armed with a concealable weapon presents a danger significantly greater than a nonfelon similarly armed. The court, however, pointed out that independent of the felony-murder rule the prosecution was still free to prove any degree of murder or manslaughter that the evidence might substantiate. (Id., atp. 33, fn. 11.)

Satchell also considered the propriety of a felony-murder instruction based upon a violation of Penal Code section 12020. This section provides that any person in possession of certain weapons, including a sawed-off shotgun, is guilty of a felony. The court concluded that this offense abstractly viewed also is not inherently dangerous to human life since it makes no distinction between the innocent gun collector and the hardened criminal. Again the court noted that if such possession was of an extremely reckless nature indicating a “conscious disregard for human life,” malice could be imputed via ordinary murder principles. (6 Cal.3d atp. 42.)

In People v. Lopez (1971) 6 Cal.3d 45 [98 Cal.Rptr. 44, 489 P.2d 1372], the Satchell reasoning was used to reverse a second degree murder conviction based on the underlying felony of escape from a county jail. (Pen. Code, § 4532.) “We cannot conclude that those who commit nonviolent escapes such as those here suggested thereby perpetrate an offense which should logically serve as the basis for the imputation of malice aforethought in a murder prosecution. Because section 4532 draws no relevant distinction between such escapes and the more violent *626variety, it proscribes an offense which, considered in the abstract, is not inherently dangerous to human life and cannot properly support a second degree felony-murder instruction.” (Italics original.) (6 Cal.3d at pp. SI-52, fn. omitted.)

And in People v. Morales (1975) 49 Cal.App.3d 134 [122 Cal.Rptr. 157], it was held that grand theft from the person of another is not an inherently dangerous felony to support a felony-murder charge: “It is apparent that the offense can readily be perpetrated without any significant hazard to human life; . . . Only in the unusual case would a taking from the person involve a substantial danger of death without the thief using force against his victim. If the thief does use force, either to effect the taking or to resist the victim’s efforts to retrieve the property [citation], the crime becomes robbery, and will support application of the felony-murder rule for that reason. Where the thief abstains from the use of force, he thereby removes the chief source of danger to human life; in such case the purpose of the felony-murder rule, ‘to deter felons from killing negligently or accidentally’ [citation], has already been achieved, and thus there would be no rational purpose to be served in extending the doctrine to cover the nonforceful larceny.” (49 Cal.App.3d at p. 143.)

Finally, the grand theft of an automobile in violation of Vehicle Code section 10851 followed by a high speed chase resulting in an unintended death does not constitute the commission of a felony inherently dangerous to human life so as to support the felony-murder doctrine (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5 [47 Cal.Rptr. 7, 406 P.2d 647], disapproving People v. Pulley (1964) 225 Cal.App.2d 366 [37 Cal.Rptr. 376], on the ground that Pulley erroneously looked to the particular facts of the felony in determining its dangerous character).

Therefore, one may cogently ask: If possession of a concealed weapon by an ex-felon, escape from a county jail, and grand theft of an automobile are not felonies per se dangerous to human life so as to provide a basis for the felony-murder rule, how may the theft of personal property from an unattended vehicle without the use of weapons be deemed inherently dangerous? Furthermore, if such a burglary will not support a second degree felony murder, how can it rationally be used to support a first degree felony murder?

If we were writing on a clean slate, we would hold that respondents should not be prosecuted for felony murder since viewed in the abstract, an automobile burglary is not dangerous to human life. The present case *627demonstrates why this is so. Respondents committed the burglary on vans parked in a dealer’s lot on a Sunday morning. There were no people inside the vans or on the lot at the time. The respondents were not armed and presumably had no expectation of using violence during the burglary.

Furthermore, treating the flight as part of the burglary to bootstrap the entire transaction into one inherently dangerous to human life simply begs the issue; flight from the scene of any crime is inherently dangerous. So, if a merchant in pursuit of a fleeing shoplifter is killed accidentally (by falling and striking his head on the curb or being hit by a passing automobile), the thief would be guilty of first degree felony murder assuming the requisite intent to steal at the time of the entry into the store. (Cf. People v. Earl, supra, 29 Cal.App.3d 894.) Such a harsh result destroys the symmetry of the law by equating an accidental killing resulting from a petty theft with a premeditated murder. In no sense can it be said that such a result furthers the ostensible purpose of the felony-murder rule which is to deter those engaged in felonies from killing negligently or accidentally. (People v. Washington, supra, 62 Cal.2d 111, 781.) On the other hand, if the flight is divorced from the burglary the latter can be objectively evaluated as to its dangerous propensities, and the instant burglary would not be deemed dangerous to human life and would be outside the purview of the felony-murder rule.

As was pointed out in People v. Earl, supra, 29 Cal.App.3d 894, 898, when the felony-murder statute was enacted in 1872, Penal Code section 459 required that the burglary occur in the nighttime and involve the entry of a “house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car . . . As defined, burglary was per se a crime dangerous to human life based on the probability of human occupancy of the described enclosures. Such danger to life was a common element in all of the felonies specified in section 189 (i.e., arson, rape, robbery, mayhem, or lewd acts upon a child). Contrary to the holding in People v. Talbot, supra, 64 Cal.2d at page 705, it rationally can be argued that the Legislature did not intend to include an automobile burglary within the felony-murder rule. This conclusion is strongly supported by the legislative classification of burglary into degrees. Penal Code section 460 provides that every burglary of an inhabited dwelling house, trailer coach, or building committed in the nighttime, is burglary of the first degree. All other kinds of burglary are of the second degree. It would be reasonable to include only first degree burglary in the Penal Code section 189 definition of felony murder.

*628Nonetheless, as previously explained the force of precedent requires the application of the first degree felony-murder rule to the instant case.

Respondents Also May Be Prosecuted for Second Degree Murder

For the guidance of the trial court, we observe that respondents may also be prosecuted for ordinary second degree murder. Second degree murder is an unlawful killing with malice aforethought but not willful, premeditated or deliberate. (People v. Jeter (1964) 60 Cal.2d 671 [36 Cal.Rptr. 323, 388 P.2d 355]; People v. Brust (1957) 47 Cal.2d 776, 783 [306 P.2d 480].) Malice is implied when the circumstances attending the killing demonstrate “an abandoned and malignant heart.” (Pen. Code, § 188.) This simply means that malice may be implied when the defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with wanton disregard for human life. (People v. Washington, supra, 62 Cal .2d 111, 782.)

In People v. Pulley, supra, 225 Cal.App.2d 366, the defendants stole an automobile and got involved in a 75- to 80-mile-per-hour chase with the police. They ran through a red light and caused a multi-car collision, killing one of the drivers. The court stated: “By any reasonable standard, stealing and driving a stolen car and endeavoring to escape pursuing officers with the stolen car, entering an intersection against all rules of the road at 70 to 80 miles per hour and crashing with other cars lawfully proceeding therein, are highly dangerous. Violence in evading the police is within the ambit of risk. Death here was not a freak coincidence, but an expectable incident of the felony, part of the risk that is set in motion by the original crime.” {Id., at p. 373.) The court upheld the application of the second degree felony-murder rule based upon the automobile theft.

The Supreme Court subsequently disapproved Pulley on the ground that the court erroneously looked to the particular facts of the case in determining whether it was “inherently dangerous” so as to support a second degree felony murder conviction. (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5.) However, the Supreme Court thereafter made clear that the Pulley fact pattern demonstrated sufficiently extreme and wanton recklessness to establish malice aforethought and second degree murder. (People v. Satchell, supra, 6 Cal.3d 28, 33-34, fn. 11; see also People v. Phillips, supra, 64 Cal.2d 574, 581; Note (1967) 55 Cal.L.Rev. 329, 340, fn. 58.)

*629Respondents contend that their conduct falls within a specific proscription of Penal Code section 192, subdivision 3, paragraph (a), vehicular manslaughter, the unlawful killing by a grossly negligent use of the automobile. They argue that where general and specific statutes both punish the same conduct, the specific must control. This argument is unavailing. The respondents’ conduct was more than grossly negligent. The conduct clearly presents an issue of fact as to whether or not respondents exhibited a wanton and reckless disregard for human life. Respondents drove at high speeds through main thoroughfares of Fresno in an attempt to elude Officer Ballesteroz. At one point in the chase they drove on the wrong side of Herndon Avenue and caused oncoming cars to swerve off of the road to avoid a head-on collision. They then made a U-turn and sped back to Blackstone Avenue, ran a red light and caused other traffic to stop to avoid a collision. Respondents then drove down Blackstone at speeds estimated between 60 and 75 miles per hour and headed straight at two oncoming police vehicles which were attempting to block their flight. Respondents did not reduce their speed as they approached the officers’ vehicles, and only a last minute maneuver by the officers avoided a possible fatal collision. At the next intersection respondents’ vehicle which “hadn’t slowed down very much” ran the red light and struck and killed the driver of the other car. Under these facts the foreseeability of serious injury or death was apparent to respondents. (Cf. People v. Pulley, supra, 225 Cal.App.2d at p. 373; see Witkin, Cal. Crimes (1978 Supp.) § 327, p. 327.) In light of the Supreme Court’s language in People v. Satchell, supra, 6 Cal.3d 28, that a high speed flight from police in an automobile may support a second degree murder conviction, the respondents’ argument must fail.

The judgment is reversed.

Hopper, J., concurred.

Ginsburg, J.,* concurred only in the reversal of the judgment of dismissal.

Respondents’ petitions for a hearing by the Supreme Court were denied February 8, 1979. Bird, C. J., Tobriner, J., and Mosk, J., were of the opinion that the petitions should be granted.

*1132Opinion

KENNARD, J.

Murder is the unlawful killing of a human being, with malice aforethought. (Pen. Code, § 187, subd. (a).) But under the second degree felony-murder rule, the prosecution can obtain a conviction without showing malice if the killing occurred during the commission of an inherently dangerous felony. Is the crime of driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2)1 an inherently dangerous felony for purposes of the second degree felony-murder rule? We conclude it is not.

I

At 12:40 a.m. on May 23, 2002, California Highway Patrol Officer Gary Stephany saw defendant driving a Chevrolet Tahoe (a sport utility vehicle) without a rear license plate, and signaled him to pull over. Defendant stopped on the side of the road. But when Officer Stephany and his partner, Officer Wayne Bernard, got out of their patrol car, defendant restarted the engine and sped to a nearby freeway. The officers gave chase at speeds of up to 90 miles per hour and radioed for assistance. Defendant left the freeway and drove onto a surface street, turning off his car’s headlights. He ran two stop signs and a red light, and he drove on the wrong side of the road. His speed was 15 to 20 miles over the posted speed limit of 50 miles per hour. At some point, he made a sharp turn onto a small dirt road and escaped.

Minutes later, Officer Anthony Arcelus and his partner, Officer Bret Boss, who had been monitoring the pursuit on their car radio, saw the Tahoe with its headlights on again and took up the chase. Officer Arcelus, who was driving, estimated the Tahoe’s speed at more than 80 miles per hour, and he saw it run a stop sign and a traffic light. By then, the car’s headlights were again turned off. Up to that point, the chase had taken place in rural parts of Fresno County. When the Tahoe started heading toward downtown Fresno, Officer Arcelus gave up the pursuit, fearing that the high-speed chase might cause an accident.

About a minute after Officer Arcelus stopped chasing the Tahoe, he saw it run a red light half a mile ahead of him and collide with a car driven by Jeanette Rodriguez. Rodriguez was killed and her husband, a passenger in the car, was seriously injured. It turned out that the Tahoe that defendant was driving had been stolen earlier that day. Defendant, who was also injured in the crash, was arrested and charged with murder (Pen. Code, § 187), with *1133causing serious bodily injury while evading a police officer (§ 2800.3), and with evading a police officer in willful or wanton disregard for the safety of persons or property (§ 2800.2).

At trial, the prosecution called as a witness Laurie Bennett, defendant’s passenger during the chase. She was evasive about the events leading up to the accident. Ultimately, she admitted that she had told the truth when she explained to a police officer that five or six times during the chase she had begged defendant to let her get out of the car, and that defendant had run a red light at the intersection where the fatal accident occurred. An accident reconstruction expert testified that at the time of the accident the Tahoe was traveling over 80 miles per hour, and Rodriguez’s car was traveling close to the posted speed limit of 35 miles per hour. John Mikkelson, a pipeline inspector working near the intersection where the accident occurred, said he looked at the signal immediately after hearing the crash of the two colliding cars and saw that it was green for cars traveling in Rodriguez’s direction (and thus presumably red for defendant).

Forensic toxicologist Roger Peterson, a witness for the defense, testified that defendant had a “high amount” of methamphetamine in his bloodstream at the time of the accident. A person under the influence of methamphetamine, Peterson said, might drive at excessive speeds, might have trouble staying in a single lane, and might not notice traffic lights and signs. Defendant also had marijuana in his bloodstream, but not enough to be under the influence. Victim Rodriguez’s bloodstream contained morphine (a metabolite of heroin) and benzoyleconine (a metabolite of cocaine). Based on this evidence, toxicologist Peterson expressed his opinion that Rodriguez was under the influence of heroin, and possibly cocaine when the accident occurred.

Defendant testified on his own behalf. He admitted stealing the Tahoe and fleeing from the Highway Patrol officers. He did so because his probation officer had told him he would go to prison if he was again caught in a stolen car. He could only remember bits and pieces of the chase. He described himself as a skilled driver; his cousin, a race car driver, had taught him to drive “sprint cars” at a racetrack. He saw the victims’ car before the accident but could not recall hitting it. He could not remember what color the signal light was when he entered the intersection but admitted it was “most likely” red when the car he was driving crashed into the Rodriguez car.

The trial court instructed the jury: “Every person who unlawfully kills a human being during the commission of violation of California Vehicle Code section 2800.2, a felony inherently dangerous to human life, is guilty of the crime of murder in violation of Section 187 of the Penal Code. [][] In order to *1134prove this crime, each of the following elements must be proved: [(j[] 1. A human being was killed; [f] 2. The killing was unlawful; and [(J[] 3. The' killing occurred during the commission of violation of California Vehicle Code section 2800.2, a felony inherently dangerous to human life. A violation of Vehicle Code section 2800.2 is a felony inherently dangerous to human life.” The trial court did not instruct the jury that malice is an element of murder or that the jury could convict defendant if it found that he acted with express or implied malice when he killed victim Rodriguez.

In his closing argument, defense counsel contended that defendant did not violate section 2800.2 because he did not drive with willful and wanton disregard for life or property; that even if defendant violated section 2800.2 while fleeing from the officers he was not doing so when the accident occurred, because by then the officers were no longer chasing him; and that defendant might not have caused the accident because there was a reasonable doubt that he ran a red light at the time of the incident.

During its deliberations, the jury sent the trial court this note: “It appears in the instructions if there is a guilty verdict in [section] 2800.2 then there must be a guilty verdict for [Penal Code section] 187, yes or no?” The court replied that it was “not in a position to say yes or no”; it then reread the instructions on felony murder and causation. The jury convicted defendant of all counts.

The Court of Appeal affirmed. As pertinent here, it rejected defendant’s contention that he could not be convicted under the second degree felony-murder rule because section 2800.2 is not an inherently dangerous felony. And it rejected defendant’s contention that he could not be convicted of murder because his conduct fit within section 2800.3 (causing death or serious bodily injury by willful flight from a pursuing peace officer), which he claimed is a “special statute” that bars his conviction for the more general crime of murder.

We granted defendant’s petition for review on these two issues: “1. Whether the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2) is a felony inherently dangerous to human life for purposes of the second degree felony-murder rule, [f] 2. Whether the offense of proximately causing death or serious bodily injury by willful flight from a pursuing police officer (Veh. Code, § 2800.3) is a more specific offense precluding application of the second degree felony-murder rule where death occurs during the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2).”

*1135H

Because the second degree felony-murder rule is a court-made rule, it has no statutory definition. This court has described it thusly: “A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the . . . felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder.” (People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892], italics added.) The rule “eliminates the need for proof of malice in connection with a charge of murder.” (People v. Robertson (2004) 34 Cal.4th 156, 165 [17 Cal.Rptr.3d 604, 95 P.3d 872].) It is not an evidentiary presumption but a substantive rule of law (see People v. Dillon (1983) 34 Cal.3d 441, 472-476 [194 Cal.Rptr. 390, 668 P.2d 697]; see also People v. Patterson (1989) 49 Cal.3d 615, 626 [262 Cal.Rptr. 195, 778 P.2d 549]), which is based on the theory 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.” (People v. Patterson, supra, 49 Cal.3d at p. 626.)

Because the second degree felony-murder rule is “a judge-made doctrine without any express basis in the Penal Code” (People v. Dillon, supra, 34 Cal.3d at p. 472, fn. 19), its constitutionality has been questioned (see People v. Patterson, supra, 49 Cal.3d at p. 641 (conc. opn. of Panelli, J.)). And, as we have noted in the past, legal scholars have criticized the rule for incorporating “an artificial concept of strict criminal liability that ‘erodes the relationship between criminal liability and moral culpability.’ ” (Id. at p. 621.) Therefore, we have repeatedly stressed that the rule “ ‘deserves no extension beyond its required application.’ ” (Id. at p. 622; see also People v. Burroughs (1984) 35 Cal.3d 824, 829 [201 Cal.Rptr. 319, 678 P.2d 894]; People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal.Rptr. 225, 414 P.2d 353].)

“In determining whether a felony is inherently dangerous [under the second degree felony-murder rule], the court looks to the elements of the felony in the abstract, ‘not the “particular” facts of the case,’ i.e., not to the defendant’s specific conduct.” (People v. Hansen (1994) 9 Cal.4th 300, 309 [36 Cal.Rptr.2d 609, 885 P.2d 1022].) That is, we determine whether the felony “by its very nature . . . cannot be committed without creating a substantial risk that someone will be killed . . . .” (People v. Burroughs, supra, 35 Cal.3d at p. 833; see also People v. Robertson, supra, 34 Cal.4th at p. 166.)

*1136Felonies that have been held inherently dangerous to life include shooting at an inhabited dwelling (People v. Hansen, supra, 9 Cal.4th at p. 311), poisoning with intent to injure (People v. Mattison (1971) 4 Cal.3d 177 [93 Cal.Rptr. 185, 481 P.2d 193]), arson of a motor vehicle (People v. Nichols (1970) 3 Cal.3d 150, 163 [89 Cal.Rptr. 721, 474 P.2d 673]; but see People v. Henderson (1977) 19 Cal.3d 86, 96 [137 Cal.Rptr. 1, 560 P.2d 1180]), grossly negligent discharge of a firearm (People v. Clem (2000) 78 Cal.App.4th 346, 353-354 [92 Cal.Rptr.2d 727]; see also People v. Robertson, supra, 34 Cal.4th at pp. 168-169 [quoting Clem with approval]), manufacturing methamphetamine (People v. James (1998) 62 Cal.App.4th 244, 271 [74 Cal.Rptr.2d 7]), kidnapping (People v. Greenberger (1997) 58 Cal.App.4th 298, 377 [68 Cal.Rptr.2d 61]; People v. Pearch (1991) 229 Cal.App.3d 1282, 1299 [280 Cal.Rptr. 584]), and reckless or malicious possession of a destructive device (People v. Morse (1992) 2 Cal.App.4th 620, 646 [3 Cal.Rptr.2d 343]).

Felonies that have been held not inherently dangerous to life include practicing medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death (People v. Burroughs, supra, 35 Cal.3d at p. 833); false imprisonment by violence, menace, fraud, or deceit (People v. Henderson, supra, 19 Cal.3d at pp. 92-96); possession of a concealable firearm by a convicted felon (People v. Satchell (1971) 6 Cal.3d 28, 35-41 [98 Cal.Rptr. 33, 489 P.2d 1361]); possession of a sawed-off shotgun (id. at pp. 41-43); escape (People v. Lopez (1971) 6 Cal.3d 45, 51-52 [98 Cal.Rptr. 44, 489 P.2d 1372]); grand theft (People v. Phillips, supra, 64 Cal.2d at pp. 580-583); conspiracy to possess methedrine (People v. Williams (1965) 63 Cal.2d 452, 458 [47 Cal.Rptr. 7, 406 P.2d 647]); extortion (People v. Smith (1998) 62 Cal.App.4th 1233, 1236-1238 [72 Cal.Rptr.2d 918]); furnishing phencyclidine (People v. Taylor (1992) 6 Cal.App.4th 1084, 1099 [8 Cal.Rptr.2d 439]); and child endangerment or abuse (People v. Lee (1991) 234 Cal.App.3d 1214, 1229 [286 Cal.Rptr. 117]).

m

In determining whether section 2800.2 is an offense inherently dangerous to life, we begin by reviewing the statutory scheme. Three statutes punish those who flee from police officers: sections 2800.1, 2800.2, and 2800.3.

Section 2800.1 states that any motorist who “with the intent to evade, willfully flees or otherwise attempts to elude” a peace officer pursuing on a motor vehicle or bicycle is, under specified circumstances, guilty of a misdemeanor.

*1137Under section 2800.3, when “willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes death or serious bodily injury to any person,” the offense is a wobbler (an offense that can be a felony or a misdemeanor, at the trial court’s discretion), punishable by up to five years in prison.

Section 2800.2, which was the basis for defendant’s conviction under the second degree felony-murder rule, provides:

“(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail .... The court may also impose a fine ... or may impose both that imprisonment or confinement and fine.

“(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.”

In concluding that section 2800.2 is an inherently dangerous felony, the Court of Appeal relied heavily on People v. Johnson (1993) 15 Cal.App.4th 169 [18 Cal.Rptr.2d 650]. There the Court of Appeal, construing an earlier version of section 2800.2 that was essentially the same as what is now subdivision (a) of that section, held that driving with “willful or wanton disregard for the safety of persons or property” was inherently dangerous to life. We need not decide, however, whether Johnson was correct, because in 1996, three years after Johnson was decided, the Legislature amended section 2800.2 to add subdivision (b). (Stats. 1996, ch. 420, § 1.) Subdivision (b) very broadly defines the term “willful or wanton disregard for the safety of persons or property,” as used in subdivision (a), to include any flight from an officer during which the motorist commits three traffic violations that are assigned a “point count” under section 12810, or which results in “damage to property.”

Violations that are assigned points under section 12810 and can be committed without endangering human life include driving an unregistered vehicle owned by the driver (§§ 40001, 12810, subds. (e), (g)(1)), driving with a suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a *1138complete stop at a stop sign (§§ 22450, 12810, subd. (e)), and making a right turn without signaling for 100 feet before turning (§§ 22108, 12810, subd. (e)).

The Court of Appeal here rejected defendant’s contention that because of the broad definition of the phrase “willful or wanton disregard for the safety of persons or property” in subdivision (b) of section 2800.2, violations of section 2800.2 are not inherently dangerous to life for the purposes of the second degree felony-murder rule. The Court of Appeal quoted People v. Sewell (2000) 80 Cal.App.4th 690 [95 Cal.Rptr.2d 600], which concluded that subdivision (b) “did not change the elements of the section 2800.2 offense, in the abstract, or its inherently dangerous nature.” (Sewell, at p. 694.) But, as we pointed out in the preceding paragraph, subdivision (b) greatly expanded the meaning of the quoted statutory phrase to include conduct that ordinarily would not be considered particularly dangerous.2

The Attorney General contends that when the Legislature amended section 2800.2 to add subdivision (b), it did not intend to make the second degree felony-murder rule inapplicable to violations of that section. The legislative history of the amendment makes no mention, however, of the second degree felony-murder rule; nor does the legislative history pertaining to the original enactment in 1988 of section 2800.2 (Stats. 1988, ch. 504, § 3, p. 1919). In all likelihood, the Legislature did not consider the effect that either the statute’s original enactment or its amendment would have on murder prosecutions. In the absence of any evidence of legislative intent, we assume that the Legislature contemplated that we would determine the application of the second degree felony-murder rule to violations of section 2800.2 based on our long-established decisions holding that the rule applies only to felonies that are inherently dangerous in the abstract. (People v. Robertson, supra, 34 Cal.4th at p. 166; People v. Hansen, supra, 9 Cal.4th at p. 309; People v. Phillips, supra, 64 Cal.2d at p. 582; People v. Williams, supra, 63 Cal.2d at p. 458, fn. 5.) As we have explained in this opinion, a violation of section 2800.2 is not, in the abstract, inherently dangerous to *1139human life. Therefore, the second degree felony-murder rule does not apply when a killing occurs during a violation of section 2800.2.

Thus, the trial court here erred when it instructed the jury that it should find defendant guilty of second degree murder if it found that, while violating section 2800.2, defendant fatally injured Jeanette Rodriguez when their cars collided.3 The parties have not briefed the question of whether the trial court’s instructional error was prejudicial. That is a matter to be considered by the Court of Appeal on remand.4

Conclusion

Nothing here should be read as saying that a motorist who kills an innocent person in a hazardous, high-speed flight from a police officer should not be convicted of murder. A jury may well find that the motorist has acted with malice by driving with conscious disregard for the lives of others, and thus is guilty of murder. (See generally People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279].) But, as we have explained, not all violations of section 2800.2 pose a danger to human life. Therefore, the prosecution may not (as it did here) resort to the second degree felony-murder rule to remove from the jury’s consideration the question whether a killing that occurred during a violation of section 2800.2 was done with malice.5

We reverse the judgment of the Court of Appeal, which upheld defendant’s conviction for second degree murder, and remand the matter to that court for further proceedings consistent with this opinion.

George, C. J., Werdegar, J., Chin, J., and Moreno, J., concurred.

*1140BROWN, J., Concurring and Dissenting.

I concur with the majority’s holding that defendant’s conviction for second degree felony murder must be reversed and the case remanded for further proceedings. However, for the reasons set forth in my dissenting opinion in People v. Robertson (2004) 34 Cal.4th 156, 186-192 [17 Cal.Rptr.3d 604, 95 P.3d 872] (dis. opn. of Brown, J.), I cannot countenance the majority’s continued allegiance to this dubious doctrine.

Here, defendant was convicted solely on a second degree felony-murder theory. The majority appears to acknowledge the rule is constitutionally and analytically suspect: “Because the second degree felony-murder rule is ‘a judge-made doctrine without any express basis in the Penal Code’ [citation], its constitutionality has been questioned [citation]. And, as we have noted in the past, legal scholars have criticized the rule for incorporating ‘an artificial concept of strict criminal liability that “erodes the relationship between criminal liability and moral culpability.” ’ [Citation.] Therefore, we have repeatedly stressed that the rule ‘ “deserves no extension beyond its required application.” ’ [Citations.]” (Maj. opn., ante, at p. 1135.) I agree, but I would go farther and abrogate the rule entirely. (People v. Robertson, supra, 34 Cal.4th 156, 191 (dis. opn. of Brown, J.) [“Because the second degree felony-murder rule is suspect I believe it would not be missed if we abandoned it”].) As the facts of this case conclusively demonstrate, the application of the second degree felony-murder rule remains irredeemably arbitrary.

The majority concludes, based on a technical parsing of the provision’s grammar, that a violation of Vehicle Code section 2800.2 is not an inherently dangerous felony for purposes of second degree felony murder. However, a commonsense construction of the statute’s language leads to the opposite conclusion—a conclusion that is considerably less counterintuitive. As one lower court stated in addressing the same issue we review here, “It would seem clear as a matter of logic that any felony whose key element is ‘wanton disregard’ for human life necessarily falls within the scope of ‘inherently dangerous’ felonies. ... [][]... [f] .. . [A]part from the ‘wanton disregard’ element, one must also be engaged in the act of fleeing from a pursuing peace officer whose vehicle is displaying lights and sirens. Any high-speed pursuit is inherently dangerous to the lives of the pursuing police officers. In even the most ethereal of abstractions, it is not possible to imagine that the ‘wanton disregard’ of the person fleeing does not encompass disregard for the safety of the pursuing officers.” (People v. Johnson (1993) 15 Cal.App.4th 169, 173-174 [18 Cal.Rptr.2d 650].) Unlike the majority, I find the Court of Appeal’s statement in Johnson persuasive.

*1141Indeed, I agree with Justice Baxter that if any offense should easily qualify as inherently dangerous, Vehicle Code section 2800.2 certainly would. “Subdivision (a) of section 2800.2 gives clear and specific notice that one who, in order to elude police pursuit, drives with reckless indifference to safety is guilty of a felony. Such reckless driving is, of course, inherently dangerous—by definition, it creates a substantial risk that someone will be killed.” (Dis. opn. of Baxter, J., post, at p 1143.) Although it is possible to imagine slow motion pursuits where neither people nor property are harmed, the facts of this case present the more likely scenario: defendant greatly exceeded the speed limit, ran stop signs and stoplights, drove the wrong way on a street and entered downtown Fresno, where the pursuing police officer broke off his chase because he determined that it was too dangerous to proceed. Unfortunately, although the police officer avoided injury by breaking off his pursuit, defendant still entered an intersection on a red light and collided with another vehicle, killing its driver.

“[R]easonable judges can disagree about the legitimacy of contracting or expanding the statutory definition of a felony in order to conclude that a particular violation should be deemed inherently dangerous.” (People v. Robertson, supra, 34 Cal.4th 156, 186 (dis. opn. of Brown, J.).) Two other Court of Appeal decisions have concluded that a violation of Vehicle Code section 2800.2 is an inherently dangerous felony. (People v. Sewell (2000) 80 Cal.App.4th 690, 693-697 [95 Cal.Rptr.2d 600]; People v. Johnson, supra, 15 Cal.App.4th at pp. 173-174.) In this case, two members of this court and a unanimous Court of Appeal reached the same conclusion. The fact that such variations are not just possible, but actually inevitable, suggests a level of arbitrariness we should make every effort to eliminate from the criminal law. For that reason, as well as other concerns discussed more fully in Robertson, I would abrogate the nonstatutory second degree felony-murder rule and leave it to the Legislature to define precisely what conduct subjects a defendant to strict criminal liability.

BAXTER, J., Dissenting.

I respectfully dissent. In early morning darkness, defendant, driving a stolen vehicle, led police officers on a perilous and extended chase over Fresno County roads. He ran three stop signs and a red light, and even proceeded on the wrong side of a divided highway, while operating the vehicle far in excess of posted speed limits. Finally, as he dashed on city streets toward downtown Fresno at speeds between 80 and 90 miles per hour, he ran a second red light and collided with another vehicle. Both occupants of that car were ejected onto the street. One perished.

*1142As a result of Ms reckless actions, defendant suffered a conviction for violation of VeMcle Code section 2800.2,1 wMch makes it a felony to flee police pursuit by driving with “a willful or wanton disregard for the safety of persons or property.” (Id., subd. (a).) Because Ms violation of this law had fatal consequences, defendant was also convicted of second degree murder on a felony-murder theory—i.e., that he caused death in the commission of an inherently dangerous felony. Instructions told the jury that the “willful or wanton disregard” necessary to both convictions required an intentional act performed with a “conscious disregard” for safety.

The majority concede that defendant (1) violated section 2800.2, the reckless flight statute, by “willful[ly] or wanton[ly] disregard[ing]” human safety during a flight from the police, and (2) thereby produced a human fatality. Nonetheless, though two Court of Appeal decisions have concluded otherwise (People v. Sewell (2000) 80 Cal.App.4th 690, 693-697 [95 Cal.Rptr.2d 600] (Sewell); People v. Johnson (1993) 15 Cal.App.4th 169, 173-174 [18 Cal.Rptr.2d 650] (Johnson)), the majority insist that this statute cannot support a felony-murder conviction.

The majority invoke the premise that second degree felony murder only occurs in the commission of a felony which is inherently dangerous in the abstract—one which, by its very nature, cannot be committed without creating a substantial risk, or a high probability, that someone will be killed. (E.g., People v. Hansen (1994) 9 Cal.4th 300, 309 [36 Cal.Rptr.2d 609, 885 P.2d 1022] (Hansen).) Relying on the peculiar construction of the reckless flight statute, including its recent amendment, the majority posit that even if defendant violated section 2800.2 in a potentially lethal way, it can be violated without creating a lethal danger to persons.

The majority focus upon subdivision (b) of section 2800.2, which was added in 1996. This subdivision states that “[f]or purposes of [section 2800.2],” driving with “a willful or wanton disregard for the safety of persons or property includes . . . driving . . . during which time . . . tiiree or more [traffic] violations that are assigned a traffic violation point count under [s]ection 12810 occur . . . .” The majority reason that, because some statutory “points” violations are not inherently dangerous, one can commit the unitary felony described in both subdivisions of section 2800.2 in a way that does not place human life at risk.

*1143I am not persuaded. Subdivision (a) of section 2800.2 gives clear and specific notice that one who, in order to elude police pursuit, drives with reckless indifference to safety is guilty of a felony. Such reckless driving is, of course, inherently dangerous—by definition, it creates a substantial risk that someone will be killed. Moreover, there is no doubt that defendant committed exactly the reckless endangerment of human life forbidden by the statute. As I explain in further detail below, his conviction for violating section 2800.2, as well as his felony-murder conviction, were unambiguously based on the dangerous recklessness of his flight from the police.

Hence, the principal reason noted by the majority for limiting the second degree felony-murder rule should not bar a felony-murder finding here. The statute’s express words placed defendant on notice that the particular conduct he was committing—recklessly unsafe driving to elude police pursuit—was both felonious and inherently dangerous, and thus a basis for murder liability if death resulted. This is a case where “ ‘society has declared certain inherently dangerous conduct to be felonious,’ ” and “ ‘defendant should [therefore] 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.’ ” (Maj. opn., ante, at p. 1135, quoting People v. Patterson (1989) 49 Cal.3d 615, 626 [262 Cal.Rptr. 195, 778 P.2d 549] (Patterson).)

Conversely, the principal reason for applying the felony-murder rule is present. The purpose of the felony-murder doctrine “ ‘is to deter those engaged in felonies from killing negligently or accidentally.’ ” (Hansen, supra, 9 Cal.4th 300, 308, quoting People v. Satchell (1971) 6 Cal.3d 28, 43 [98 Cal.Rptr. 33, 489 P.2d 1361].) Because the doctrine absolves the prosecution from proving malice, it properly applies 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.’ ” (Ibid.)

Those requirements are met here. It is appropriate to deter persons from killing negligently or accidentally—as did defendant—while engaged—as was defendant—in recklessly unsafe driving to elude police pursuit, a specific form of conduct made felonious by section 2800.2, subdivision (a). Moreover, the inherent danger such conduct poses to human life is so clear that it is logical to impute malice to anyone who commits it.

Under such circumstances, it perverts reason to refuse to apply the felony-murder rule simply because subdivision (b) of section 2800.2 may additionally describe a nondangerous felony. Where society has warned, in plain statutory words, that the particular conduct committed by the defendant *1144is both dangerous and felonious, it should not matter that the statute may forbid nondangerous conduct as well.2

It is worth noting that, although the Legislature elected to include subdivision (b) as part of section 2800.2, it could just as easily have added a separate section, establishing a distinct felonious offense of committing three “points” violations while driving to elude a peace officer. This would equally have satisfied the apparent legislative purpose to deter flight from the police by expanding the circumstances under which driving to elude a pursuing police officer would constitute a felony. (See, e.g., Sen. Com. on Crim. Proc., Analysis of Assem. Bill No. 1999 (1995-1996 Reg. Sess.) as amended Apr. 29, 1996, p. 6.)

However, neither the Legislature’s desire to create a felony of flight with “points” violations, nor its choice of methodology to accomplish this result, can deprive the reckless conduct described in subdivision (a) of all force as an inherently dangerous felony. If subdivision (a) described an inherently dangerous felony before the addition of subdivision (b) in 1996 (see Johnson, supra, 15 Cal.App.4th 169, 173-174), the unchanged words of that subdivision equally do so following the 1996 amendment (see Sewell, supra, 80 Cal.App.4th 690, 693-697).

In sum, where the defendant committed inherently dangerous conduct expressly made felonious by subdivision (a) of section 2800.2, and was accused, tried, and convicted solely under that subdivision, I submit that subdivision (a) is the provision we should analyze to determine if it qualifies as a basis for felony murder.

As I have indicated above, this is such a case. The prosecution avoided all reliance on subdivision (b) of section 2800.2, and that subdivision was never an issue in the trial below. When referring to section 2800.2, the information cited only the language of subdivision (a), charging that defendant “drove with a willful or wanton disregard for the safety of persons or property.” In his testimony, one of the pursuing officers, Gary Stephany, ticked off the numerous Vehicle Code violations defendant had committed during the *1145high-speed chase, but the import of Stephany’s testimony was simply to emphasize defendant’s extreme and ongoing recklessness. The prosecutor never asked Stephany, or any other witness, whether defendant committed “points” violations.

In his argument to the jury concerning section 2800.2, the prosecutor emphasized that defendant’s various reckless traffic violations proved he had acted with “willful or wanton disregard,” i.e., with conscious indifference to the consequences for safety. The entire focus of the prosecutor’s argument was on defendant’s culpable state of mind while fleeing the police, as evidenced by his inherently dangerous driving maneuvers. The prosecutor never suggested that technical “points” violations committed by defendant were a basis for finding him guilty of violating section 2800.2, or of murder.

Most crucially, all reference to subdivision (b) was omitted from the jury instruction on section 2800.2. When describing the elements of a violation of that statute, the instruction said only that “ ‘[wjillful or wanton’ means an act intentionally performed with a conscious disregard for the safety of persons or property. It does not necessarily include an intent to injure.” (Italics added.)

Thus, beyond doubt, the jury convicted defendant of murder based solely on proof that he fled police pursuit by driving with reckless indifference to safety, conduct which is both inherently dangerous and expressly felonious under subdivision (a) of section 2800.2. It follows that the felony underlying defendant’s murder conviction was an inherently dangerous one. Accordingly, I submit, a murder conviction could be premised on his commission of this felony.

But even if section 2800.2 were not an inherently dangerous felony that could support a felony-murder conviction, any error in instructing the jury to the contrary was harmless. Indeed, by remanding to the Court of Appeal for a determination on the issue of prejudice, the majority imply that a no-prejudice conclusion is plausible.

I find such a conclusion inescapable, for two reasons. First, a reasonable jury, properly instructed on an implied malice theory of second degree murder, could not have failed to find, on this evidence, the elements of malicious murder. Second, though this jury received no explicit instructions on malice, it necessarily did find, under the instructions which were given, that defendant killed maliciously.

“ ‘Implied malice, for which the second degree felony-murder doctrine acts as a substitute [fn. omitted], has both a physical and a mental component. . . . *1146The mental component is the requirement that the defendant “knows that his conduct endangers the life of another and . . . acts with a conscious disregard for lifer [Citation].’ ” (People v. Robertson (2004) 34 Cal.4th 156, 165 [17 Cal.Rptr.3d 604, 95 P.3d 872], quoting Patterson, supra, 49 Cal.3d 615, 626, italics added.)

In my view, the evidence that defendant acted with actual knowledge and conscious disregard of the lethal probabilities is conclusive. No other inference can be drawn from his decision to maintain his careening flight from the police over highways and streets carrying innocent travelers. During the high-speed chase, he swerved over a median boundary of a divided highway and travelled in lanes reserved for oncoming vehicles, risking a head-on collision. With equal purpose, he ran at least three stop signs and two red lights, forcing cross-traffic to yield and creating the obvious danger of crashes at these controlled intersections. In his frantic efforts to outdistance his pursuers, he “fishtailed” into curves and comers, giving rise to the peril of spin-out accidents that could involve other vehicles. The fatal collision occurred in the midst of this course of conduct, as defendant, still trying to escape, ran a red light at high speed.

As a matter of law, I believe, these intentional acts went beyond mere gross negligence or reckless indifference. Defendant—by his own evaluation a skilled driver—must have acted with full awareness that he was thereby placing human life at risk. He cannot evade this responsibility through his inherently implausible testimony that he remembered only bits and pieces of the chase, and could not recall whether the traffic light was red at the fatal intersection when he entered it.

In any event, this jury was told that the felony described in section 2800.2 required a conscious disregard for safety. Hence, in finding that defendant caused death in the commission of this felony, the jury necessarily found that he understood the danger, and chose to act anyway, thus exhibiting implied malice. Under these circumstances, reliance on a felony-murder theory, even if error, must be deemed harmless. (Cf., e.g., People v. Sedeno (1974) 10 Cal.3d 703, 720-721 [112 Cal.Rptr. 1, 518 P.2d 913].)3

Having concluded that defendant’s violation of section 2800.2 was an “inherently dangerous” felony for purposes of the felony-murder rule, I must *1147address his second argument. Defendant urges that he cannot be prosecuted and punished for felony murder in any event because the Legislature intends section 2800.3 as the only statute under which deaths caused by vehicular flight from the police may be prosecuted and punished without proof of malice.4

Defendant invokes the principle that a special statute defining an offense preempts a more general statute encompassing the same conduct. (See, e.g., In re Williamson (1954) 43 Cal.2d 651, 654 [276 P.2d 593].) But this rule applies only “(1) when each element of the general statute corresponds to an element on the face of the special statute, or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute. [Citation.]” (People v. Watson (1981) 30 Cal.3d 290, 295-296 [179 Cal.Rptr. 43, 637 P.2d 279].)

Neither circumstance is present here. Both statutes permit punishment, without proof of malice, for fatalities caused by vehicular flight from the police, but the two statutes do not govern such killings identically. Section 2800.3—in defendant’s view, the more specific death-related statute— sanctions such a homicide regardless of the fleeing motorist’s degree of driving care. By contrast, to be convicted of felony murder under the more “general” statute, section 2800.2, the fleeing motorist must have driven with “a willful or wanton disregard for safety.” Thus, the facial elements of the two statutes differ, and a fatality punishable under section 2800.3 will not necessarily or commonly constitute a felony murder under section 2800.2.

Through an exhaustive analysis of legislative history, defendant argues that the Legislature’s “carefully crafted” scheme for punishment of pursuit-related fatalities precludes prosecution of such homicides as felony murder. His contention lacks merit. Vehicular flight from the police, with its potential for death, injury, and property damage, has been a growing problem. The Legislature has responded over the years by expanding the punishment for such conduct under various circumstances. Among other things, it has provided in section 2800.3 that one whose flight, however carefully conducted, causes death or injury may receive up to five years in prison, a $10,000 fine, or both. But nothing indicates the Legislature intended a similar limitation on the punishment of persons who commit homicides while engaged in the inherently dangerous felony of flight from police pursuit with *1148willful and wanton disregard for safety. Every consideration of logic and common sense suggests that such homicides may properly be treated under the law of felony murder.

For all these reasons, I would affirm the judgment of the Court of Appeal.

The opinion of the court was delivered by

Larson, J.:

This is Sanexay Sophophone’s direct appeal of his felony-murder conviction for the death of his co-felon during flight from an aggravated burglary in which both men participated.

The facts are not in dispute. Sophophone and three other individuals conspired to and broke into a house in Emporia. The resident reported the break-in to the police.

Police officers responded to the call, saw four individuals leaving the back of the house, shined a light on the suspects, identified themselves as police officers, and ordered them to stop. The individuals, one being Sophophone, started to run away. One officer ran down Sophophone, hand-cuffed him, and placed him in a police car.

Other officers arrived to assist in apprehending the other individuals as they were running from the house. An officer chased one of the suspects later identified as Somphone Sysoumphone. Sysoumphone crossed railroad tracks, jumped a fence, and then stopped. The officer approached with his weapon drawn and ordered Sysoumphone to the ground and not to move. Sysoumphone was lying face down but raised up and fired at the officer, who returned fire and killed him. It is not disputed that Sysoumphone was one of the individuals observed by the officers leaving the house that had been burglarized.

Sophophone was charged with conspiracy to commit aggravated burglary, K.S.A. 21-3302; aggravated burglary, K.S.A. 21-3716; obstruction of official duty, K.S.A. 21-3808; and felony murder, K.S.A. 21-3401(b).

Sophophone moved to dismiss the felony-murder charges, contending the complaint was defective because it alleged that he and not the police officer had killed Sysoumphone and further because he was in custody and sitting in the police car when the deceased was killed and therefore not attempting to commit or even fleeing from an inherently dangerous felony. His motion to dismiss was denied by the trial court.

*705Sophophone was convicted by a jury of all counts. His motion for judgment of acquittal was denied. He was sentenced on all counts. He appeals only his conviction of felony murder.

Our jurisdiction is under K.S.A. 22-3601(b)(l) (maximum sentence of life imprisonment imposed).

Sophophone’s counsel contends (1) State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988), should be overruled insofar as it allows criminal responsibility for a co-felon’s death, (2) he cannot be convicted of felony murder of a co-felon caused by a police officer while he was in custody, and (3) there was not sufficient evidence to support his conviction.

Sophophone’s supplemental pro se brief raises contentions 1 and 2 above and further contends that the complaint/information was fatally or jurisdictionally defective.

We consider only the question of law, upon which our review is unlimited, of whether Sophophone can be convicted of felony murder for the killing of a co-felon not caused by his acts but by the lawful acts of a police officer acting in self-defense in the course and scope of his duties in apprehending the co-felon fleeing from an aggravated burglary.

The applicable provisions of K.S.A. 21-3401 read as follows:

“Murder in the first degree is the killing of a human being committed:

“(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.”

Aggravated burglary is one of the inherently dangerous felonies as enumerated by K.S.A. 21-3436(10).

Sophophone does not dispute that aggravated burglary is an inherently dangerous felony which given the right circumstances would support a felony-murder charge. His principal argument centers on his being in custody at the time his co-felon was killed by the lawful act of the officer which he contends was a “break in circumstances” sufficient to insulate him from further criminal responsibility.

This “intervening cause” or “break in circumstances” argument has no merit under the facts of this case. We have held in numerous *706cases that “time, distance, and the causal relationship between the underlying felony and a killing are factors to be considered in determining whether the killing occurs in the commission of the underlying felony and the defendant is therefore subject to the felony-murder rule.” See, e.g. State v. Kaesontae, 260 Kan. 386, Syl. ¶ 1, 920 P.2d 959 (1996); State v. Rider, Edens & Lemons, 229 Kan. 394, Syl. ¶ 4, 625 P.2d 425 (1981); State v. Hearron, 228 Kan. 693, Syl. ¶ 2, 619 P.2d 1157 (1980). Based on the uncontroverted evidence in this case, the killing took place during flight from the aggravated burglary, and it is only because the act which resulted in the killing was a lawful one by a third party that a question of law exists as to whether Sophophone can be convicted of felony murder.

The history of felony murder in Kansas is well chronicled in Hoang, 243 Kan. at 43-44, and need not be repeated here. The changes that have taken place during the 13 years since Hoang was decided have mainly related to enumeration of the specific inherently dangerous felonies that are subject to felony murder (K.S.A. 21-3436) and the 1992 Legislative change in K.S.A. 21-3401 to state that murder in the first degree includes the killing of a human being committed “(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony . . . .” L. 1992, ch. 298, § 3.

Prior to the enumeration of specific felonies that are statutorily deemed to be inherently dangerous, appeals often turned on the question of whether the collateral felony would support the application of the felony-murder rule. We said, however, in State v. Brantley 236 Kan. 379, 380-81, 691 P.2d 26 (1984):

“Although a literal application of K.S.A. 21-3401 would allow any felony to support a charge of felony murder so long as a causal relation exists, we have never allowed the doctrine to be applied so broadly. The purpose of the felony murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and it should not be extended beyond the rational function it was designed to serve.”

See State v. Vontress, 266 Kan. 248, 262, 970 P.2d 42 (1998); State v. Thompkins, 263 Kan. 602, 609, 952 P.2d 1332 (1998).

*707There was wording in Brantley concerning the killing being negligently or accidentally accomplished. This followed the result in State v. Branch & Bussey, 223 Kan. 381, 383-84, 573 P.2d 1041 (1978), where a killing was accidental but committed by Bussey during a robbery incidental to a drug deal, and we broadly stated:

“We conclude that any participant in a life-endangering felony is guilty of first degree murder when a life is taken in the course of committing or attempting to commit die felony, whether the deadi was intentional or accidental, or whether die participant directly caused it to occur. (See, State v. Bey, 217 Kan. 251, 535 P.2d 881; State v. Turner, [193 Kan. 189, 392 P.2d 863 (1964)]; State v. Bundy, 147 Kan. 4, 75 P.2d 236.)”

We have also stated that another purpose for the felony-murder doctrine “is to relieve the state of the burden of proving premeditation and malice when the victim’s death is caused by the killer while he is committing another felony.” State v. Clark, 204 Kan. 38, 43, 460 P.2d 586 (1969).

Our cases are legion in interpreting the felony-murder statute, but we have not previously decided a case where the killing was not by the direct acts of the felon but rather where a co-felon was killed during his flight from the scene of the felony by the lawful acts of a third party (in our case, a law enforcement officer).

A similar scenario took place in State v. Murrell, 224 Kan. 689, 585 P.2d 1017 (1978), where Murrell was charged with felony murder for the death of his co-felon who had been shot by the robbery victim who had returned gunfire from Murrell. However, Murrell was acquitted of felony murder and his appeal involved only issues relating to his other convictions. 224 Kan. at 690.

Although there were clearly different facts, we held in Hoang, 243 Kan. at 42-46 that felony murder may include the accidental death of a co-felon during the commission of arson. The decedents had conspired with Hoang to burn down a building housing a Wichita restaurant/club but died when they were trapped inside the building while starting the fire. Hoang was an active participant in the felony and present at the scene, although he remained outside the building while his three accomplices entered the building with containers of gasoline to start the fire.

*708We held, in a split decision, that the decedents were killed during the perpetration of a felony inherently dangerous to human life and there was nothing in the statute to exclude the killing of co-felons from its application. 243 Kan. at 46. It must be pointed out that the facts in Hoang involved the wrongful acts of a co-felon which were directly responsible for the deaths of his co-felons.

The dissent in Hoang noted that in previous cases the felony-murder rule had been applied only to the deaths of innocents and not to the deaths of co-felons. The result was deemed by the dissent to be contrary to legislative intent and the strict construction of criminal statutes that is required. 243 Kan. at 46-47.

With this brief background of our prior Kansas cases, we look to the prevailing views concerning the applicability of the felony-murder doctrine where the killing has been caused by the acts of a third party. The two different approaches applicable are succinctly set forth in Comment Kansas Felony Murder: Agency or Proximate Cause? 48 Kan. L. Rev. 1047, 1051-52 (2000), in the following manner:

“There are two basic approaches to application of the felony-murder doctrine: die agency and proximate cause theories. The agency approach, which is the majority view, limits application of the doctrine to those homicides committed by die felon or an agent of the felon. Under such an approach, ‘[t]he identity of the killer becomes the threshold requirement for finding liability under the felony-murder doctrine.’

“The proximate cause approach provides that liability attaches “for any death proximately resulting from the unlawful activity — even the death of a co-felon— notwithstanding the killing was by one resisting die crime.’ ” Under the proximate cause approach, felony murder may preclude consideration of the deceased’s identity, which would make a defendant liable for all deadis caused by others during the crime. Application of the proximate cause varies greatly by jurisdiction because the statutes differ substantially. The proximate cause approach becomes controversial when the homicide is committed by someone other than die felons, but only a minority of jurisdictions follow diis approach.”

In Dressier, Understanding Criminal Law, § 31.07[4] Killing by a Non-Felon, pp. 471-72 (1987), the question is posed of whether the felony-murder rule should apply when the fatal act is performed by a non-felon. Dressier states:

*709“This issue has perplexed courts. Two approaches to the question have been considered and applied by the courts.

“[b] The ‘Agency’ Approach

“The majority rule is that the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon. . . .

“The reasoning of this approach stems from accomplice liability theory. Generally speaking, the acts of the primary party (the person who directly commits the offense) are imputed to an accomplice on the basis of the agency doctrine. It is as if the accomplice says to the primary party: ‘Your acts are my acts.’ It follows that [a co-felon] cannot be convicted of the homicides because the primary party was not die person widi whom she was an accomplice. It is not possible to impute die acts of the antagonistic party — [die non-felon or] the police officer — to [a co-felon] on the basis of agency.

“[c] The ‘Proximate Causation’ Approach

“An alternative dieory, followed by a few courts for awhile, holds that a felon may be held responsible under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victim’s deadi.

“Pursuant to diis rule, the issue becomes one of proximate causation: if an act by one felon is the proximate cause of the homicidal conduct by [die non-felon] or the police officer, murder liability is permitted.”

In 2 LaFave & Scott, Substantive Criminal Law, § 7.5(d), pp. 217-18 (1986), the author opines: “Although it is now generally accepted that there is no felony-murder liability when one of the felons is shot and killed by the victim, a police officer, or a bystander, it is not easy to explain why this is so.”

The author discusses forseeability and that it is not correct to say that a felon is never hable when the death is lawful because it is “justifiable” and goes on to state:

“A more plausible explanation, it is submitted, is the feeling that it is not justice (though it may be poetic justice) to hold the felon liable for murder on account of the death, which the felon did not intend, of a co-felon willingly participating in the risky venture. It is true that it is no defense to intentional homicide crimes that the victim voluntarily placed himself in danger of death at the hands of the defendant, or even that he consented to his own death: a mercy killing constitutes murder; and aiding suicide is murder unless special legislation reduces it to manslaughter. But with unintended killings it would seem proper to take the victim’s willing participation into account. . . .”

As we noted in Hoang, it is not very helpful to review case law from other states because of differences in statutory language; however, the high courts which have considered this precise question *710are divided between the agency approach and the proximate cause approach.

The leading case adopting the agency approach is Commonwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472 (1958), where the underlying principle of the agency theory is described as follows:

“In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the felony-murder doctrine.”

The following statement from Redline is more persuasive for Sophophone:

“In the present instance, the victim of the homicide was one of the robbers who, while resisting apprehension in his effort to escape, was shot and killed by a policeman in the performance of his duty. Thus, the homicide was justifiable and, obviously, could not be availed of, on any rational legal theory, to support a charge of murder. How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for the consequences of the lawful conduct of another person? The mere question carries with it its own answer.” 391 Pa. at 509.

For a listing of states whose courts have adopted the agency theory, see Annot. Criminal Liability Where Act Of Killing Is Done By One Resisting Felony Or Other Unlawful Act Committed By Defendant, 56 A.L.jR. 3rd 239; Annot. Application of Felony-Murder Doctrine Where Person Killed was Co-Felon, 89 A.L.R. 4th 683, § 10[b], ll[b], 12[b].

The minority of the states whose courts have adopted the proximate cause theory believe their legislatures intended that any person, co-felon, or accomplice who commits an inherently dangerous felony should be held responsible for any death which is a direct and foreseeable consequence of the actions of those committing the felony. These courts apply the civil law concept of proximate cause to felony-murder situations. States which have so held are listed in Annot. 89 A.L.R. 4th 683 § 10[a], ll[a], 12[a].

It should be mentioned that some courts have been willing to impose felony-murder liability even where the shooting was by a person other than one of the felons in the so-called “shield” situ*711ations where it has been reasoned “that a felon’s act of using a victim as a shield in compelling a victim to occupy a place or position of danger constitutes a direct lethal act against the victim.” Campbell v. State, 293 Md. 438, 451 n. 3, 444 A.2d 1034 (1982).

It has previously been suggested that the wording in Kaesontae, 260 Kan. 386, Syl. ¶ 1, relating to “time, distance, and the causal relationship between the underlying felony and the killing” should be interpreted to mean we have adopted the proximate cause approach. That is not the case as this phrase is one which relates to the question of whether the killing occurs during the commission of or flight from the underlying felony. The Kansas cases which have used this wording involved situations where the court was determining if the killing was sufficiently related to the felony in terms of time, distance, and causation in order to constitute felony murder. None of those cases hold that we have adopted the proximate cause approach to the killing of a co-felon by a third party.

Nor have we adopted the proximate cause approach because of our holding and language in State v. Shaw, 260 Kan. 396, 405, 921 P.2d 779 (1990), where we held that a defendant who bound and gagged a 86-year-old robbery victim with duct tape was hable for the victim’s death when he died of a heart attack while so bound and gagged. Although we may speak of causation in such a case, our ruling in Shaw is better described by quoting syllabus ¶ 2: “The victim must be taken as the defendant finds him. Death resulting from a heart attack will support a felony-murder conviction if there is a causal connection between the heart attack and the felonious conduct of the defendant.” This is not the embracing of a proximate cause approach under the facts we face.

An additional argument has been made that when we approved the language of PIK Crim. 3d 56.02 relating to the causation required by the law for felony murder in State v. Lamae, 268 Kan. 544, 555, 998 P.2d 106 (2000), we recognized that the killing could be perpetrated by the defendant or another. (Emphasis added). The case involved the death of a participant in a metfiamphetamine fire. Our opinion did state: “It is true that there must be a direct causal connection between the commission of the felony and the homicide to invoke the felony-murder rule. See State v. Under*712wood, 228 Kan. 294, 302, 615 P.2d 153 (1980). However, the general rules of proximate cause used in civil actions do not apply.” (Emphasis added.) 268 Kan. at 555. This language, if taken in isolation, is much more favorable to Sophophone’s position. However, we believe that neither this statement nor the “or another” language in Lamae should be given undue consideration when we resolve the different question we face here.

There is language in K.S.A. 21-3205(2) that predicates criminal responsibility to an aider or abettor for “any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.” This wording does not assist us for the killing of the co-felon in our case where it was the lawful act by a law enforcement officer who was in no manner subject to these aider and abettor provisions.

The overriding fact which exists in our case is that neither Sophophone nor any of his accomplices “killed” anyone. The law enforcement officer acted lawfully in committing the act which resulted in the death of the co-felon. This does not fall within the language of K.S.A. 21-3205 since the officer committed no crime.

When the 1992 Kansas Legislature made extensive amendments to our criminal code, including K.S.A. 21-3401, one of the stated goals was to “conform the code to the majority of states’ laws when doing so was not clearly contrary to the Legislature’s intent.” See Comment 48 Kan. L. Rev. 1047, 1055 n. 68. But, this provides no insight to the problem we face and certainly does not require us to adopt the agency approach which the majority of the jurisdictions in the United States do follow.

Of more assistance to us is our long-time rule of statutory interpretation:

“[Cjriminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).

It appears to the majority that to impute the act of killing to Sophophone when the act was the lawful and courageous one of a *713law enforcement officer acting in the line of his duties is contrary to the strict construction we are required to give criminal statutes. There is considerable doubt about the meaning of K.S.A. 21-3401(b) as applied to the facts of this case, and we believe that making one criminally responsible for the lawful acts of a law enforcement officer is not the intent of the felony-murder statute as it is currently written. Cf. State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001) (felon may not be convicted of felony murder for the killing of his co-felon caused not by his acts or actions but by the lawful acts of a victim of aggravated robbery and kidnapping acting in self-defense for the protection of his residence and the property thereof).

It does little good to suggest one construction over another would prevent the commission of dangerous felonies or that it would deter those who engage in dangerous felonies from killing purposely, negligently, or accidentally. Actually, innocent parties and victims of crimes appear to be those who are sought to be protected rather than co-felons.

We hold that under the facts of this case where the killing resulted from the lawful acts of a law enforcement officer in attempting to apprehend a co-felon, Sophophone is not criminally responsible for the resulting death of Somphone Sysoumphone, and his felony-murder conviction must be reversed.

This decision is in no manner inconsistent with our rulings in Hoang or Lamae, which are based on the direct acts of a co-felon and are simply factually different from our case. Sophophone’s request that State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988), be overruled is denied.

Reversed.

Abbott, J.,

dissenting: The issue facing the court in this case is

whether Sophophone may be legally convicted under the felony-murder statute when he did not pull the trigger and where the victim was one of the co-felons. The majority holds that Sophophone cannot be convicted of felony murder. I dissent.

An analysis of this issue must begin with an examination of the murder statute. K.S.A. 21-3401 provides:

*714“Murder in the first degree is the killing of a human being committed:

“(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.”

When an issue requires statutory analysis and the statute is unambiguous, we are limited by the wording chosen by the legislature. We are not free to alter the statutory language, regardless of the result. In the present case, the felony-murder statute does not require us to adopt the “agency” theory favored by the majority. Indeed, there is nothing in the statute which establishes an agency approach. The statute does not address the issue at all. The requirements, according to the statute, are: (1) there must be a killing, and (2) the killing must be committed in the commission, attempt to commit, or flight from an inherently dangerous felony. The statute simply does not contain the limitations discussed by the majority. There is nothing in K.S.A. 21-3401 which requires us to adopt the agency approach or that requires Sophophone to be the shooter in this case. The facts in this case, in my opinion, satisfy all of the requirements set forth in K.S.A. 21-3401(b).

Moreover, there are sound reasons to adopt the proximate cause approach described in the majority opinion. In State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988), this court took such an approach, although never referring to it by name. In Hoang, Chief Justice McFarland, writing for the court, discussed at length the requirements of the felony-murder rule in Kansas and stated:

“In felony-murder cases, the elements of malice, deliberation, and premeditation which are required for murder in the first degree are deemed to be supplied by felonious conduct alone if a homicide results. To support a conviction for felony murder, all that is required is to prove that a felony was being committed, which felony was inherently dangerous to human life, and that the homicide which followed was a direct result of the commission of that felony. In a felony-murder case, evidence of who the triggerman is is irrelevant and all participants are principals. [Citations omitted.]

“The puipose of the felony-murder doctrine is to deter all those engaged in felonies from killing negligently or accidentally. . . .

“It is argued in the case before us that felony murder applies only to the deaths of Innocents’ rather than co-felons. There is nothing in our statute on which to base such a distinction. . . .

*715“Dung and Thuong, the decedents herein, were human beings who were killed in the perpetration of a felony. . . . Defendant was an active participant in die felony and present on the scene during all pertinent times. There is nothing in the statute excluding the killing of the co-felons herein from, its application. For this court to exclude the co-felons would constitute judicial amendment of a statute on philosophic rather than legal grounds. This would be highly improper. The legislature has defined felony murder. If this definition is to be amended to exclude the killing of co-felons therefrom under circumstances such as are before us, it is up to the legislature to make such an amendment.” 243 Kan. at 41-42, 45-46. (Emphasis added.)

It is not this court’s prerogative to decide what is and is not felony murder. That is a legislative function.

Hoang was decided in 1988, almost 13 years ago. The legislature has not amended or altered K.S.A. 21-3401 since that time to prevent the felony-murder statute from being used when the victim is a co-felon or where the defendant’s actions are not the immediate cause of the death. The majority states that the decision in this case is not inconsistent with the ruling in Hoang. I disagree. The language in Hoang warns of the dangers of judicial reconstruction and statutory revisionism; however, the majority has taken that approach regardless. Although the facts in Hoang are not identical to the facts in this case, the differences are inconsequential. In my opinion, Hoang is still good law and provides ample justification to apply the felony-murder rule to Sophophone.

The majority in this case points out that the majority of states have adopted the agency approach when faced with the death of a co-felon. They acknowledge, however, that because statutes vary significantly from state to state, reference to a “majority” rule and a “minority” rule is meaningless. Indeed, an in-depth analysis of the current case law in this area leads me to the following conclusions: (1) While a majority of states would agree with the majority opinion in this case, the margin is slim; (2) many of the states that have adopted the so-called “agency” approach have done so because the statutory language in their state requires them to do so; and (3) several of the states that have adopted the “proximate cause” approach have done so because their statutes are silent on the issue, like Kansas.

*716The following courts have used a proximate cause approach instead of following the agency theory adopted by the majority in this case. Several of the following cases also involve factual situations where the co-felon was killed by a police officer, as is the situation in the present case. See State v. Lopez, 173 Ariz. 552, 556, 845 P.2d 478 (Ct. App. 1993) (affirming felony-murder conviction where police officer shot co-felon while defendant was already under arrest by using the proximate cause approach as set forth by Arizona statute); State v. Wright, 379 So.2d 96, 96-97 (Fla. 1980) (holding that there was nothing in the Florida felony-murder statute which limited application to “innocent persons killed” by the defendant); People v. Dekens, 182 Ill. 2d 247, 252, 695 N.E.2d 474 (1998) (Illinois follows the proximate cause theory of felony murder); Jenkins v. State, 726 N.E.2d 268, 269-70 (Ind. 2000) (holding that Indiana felony-murder statute does not require the victim to be “innocent” and that defendant could be convicted of felony murder where robbery victim shot and killed co-felon); Palmer v. State, 704 N.E.2d 124, 125-26 (Ind. 1999) (affirming felony-murder conviction where co-felon was shot by police officer); State v. Baker, 607 S.W.2d 153, 156-57 (Mo. 1980) (affirming conviction where death was a proximate result of the acts of the defendant and his accomplices); State v. Blackmon, 587 S.W.2d 292, 293 (Mo. Ct. App. 1979) (affirming felony-murder conviction where victim was shot by an off-duty police officer); State v. Burton, 130 N.J. Super. 174, 178-79, 325 A.2d 856 (1974) (affirming felony-murder conviction where police killed co-felon during commission of a robbery and where statutory language indicated a preference for the proximate cause approach); In re Leon, 122 R.I. 548, 554-55, 410 A.2d 121 (1980) (taking a proximate cause approach and holding that defendant could be convicted of felony murder where the victim was a co-felon); State v. Oimen, 184 Wis. 2d 423, 435, 516 N.W.2d 399 (1994) (adopting proximate cause approach where co-felon was killed by burglary victim).

Some courts have been forced to take an agency approach because of the statutory language contained within their felony-murder statutes. See Weick v. State, 420 A.2d 159, 161-63 (Del. 1980) (reversing second-degree murder conviction where victim killed *717co-felon because statute requires that “he, with criminal negligence, causes the death of another person”); State v. Jones, 859 P.2d 514, 515 (Okla. Crim. 1993) (taking an agency approach because statute provides that the person committing the felony must “take the life of a human being”); State v. Hansen, 734 P.2d 421, 427 (Utah 1986) (holding that state law precluded second-degree felony-murder conviction where co-felon is killed because language in statute requires the death to be “other than a party” to the crime).

As noted in Hoang, references to cases from other jurisdictions, regardless of the “majority” or “minority” rule, is unnecessary because the statutory language, if unambiguous, should control the outcome. 243 Kan. at 44-46.

In my opinion, our statute is unambiguous and simply does not require the defendant to be the direct cause of the victim’s death, nor does it limit application of the felony-murder rule to the death of “innocents.”

In People v. Lowery, 178 Ill.2d 462, 687 N.E.2d 973 (1997), the Illinois Supreme Court discussed the public policy reasons justifying application of a proximate cause approach, stating:

“It is equally consistent with reason and sound public policy to hold that when a felon’s attempt to commit a forcible felony sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act. Thus, there is no reason why the principle underlying the doctrine of proximate cause should not apply to criminal cases. Moreover, we believe that the intent behind the felony-murder doctrine would be thwarted if we did not hold felons responsible for the foreseeable consequences of their actions. [Citations omitted.]” 178 Ill. 2d at 467.

In Sheckles v. State, 684 N.E.2d 201 (Ind. Ct. App. 1997), the Indiana Court of Appeals opined:

“[A] person who commits or attempts to commit one of the offenses designated in the felony-murder statute is criminally responsible for a homicide which results from the act of one who was not a participant in the original criminal activity. Where the accused reasonably should have . . . foreseen that the commission of or attempt to commit the contemplated felony would likely create a situation which would expose another to the danger of death at the hands of a nonparticipant in the felony, and where death in fact occurs as was foreseeable, the creation *718of such a dangerous situation is an intermediary, secondary, or medium in effecting or bringing about the death of the victim.” 684 N.E.2d at 205.

Likewise, the Supreme Court of New Jersey discussed the historical justification for application of the proximate cause rule in felony-murder cases in State v. Martin, 119 N.J. 2, 573 A.2d 1359 (1990), stating:

“More recently, felony murder has been viewed not as a crime of transferred intent, but as one of absolute or strict liability. Whether the offense is viewed as a crime of transferred intent or as one of absolute liability, the continuing justification for the felony-murder rule is that in some circumstances one who commits a felony should be liable for a resulting, albeit unintended, death. Conversely, other deaths are so remotely related to the underlying felony that the actor should not be held culpable for them. Our task is to ascertain the circumstances in which the Legislature has decided that one who commits a felony should also be culpable for a resulting death.

“The historical justification for the rule is that it serves as a general deterrent against the commission of violent crimes. [Citation omitted.] The rationale is that if potential felons realize that they will be culpable as murderers for a death that occurs during the commission of a felony, they will be less likely to commit the felony. From this perspective, the imposition of strict liability without regard to the intent to kill serves to deter the commission of serious crimes.” 119 N.J. at 20.

Here, Sophophone set in motion acts which would have resulted in the death or serious injury of a law enforcement officer had it not been for the highly alert law enforcement officer. This set of events could have very easily resulted in the death of a law enforcement officer, and in my opinion this is exactly the type of case the legislature had in mind when it adopted the felony-murder rule.

The majority has opened a Pandora’s box and left the law grossly unsettled. It does not take much imagination to see a number of situations where a death is going to result from an inherently dangerous felony and the majority’s opinion is going to prevent the accused from being charged with felony murder.

If there is to be a change in the law, it should be by the legislature and not by this court adopting a statutory scheme set forth by the legislatures of other states. I would continue to follow the proximate cause theory of liability for felony murder which holds that criminal liability attaches for any death proximately resulting from *719the unlawful activity notwithstanding the fact that the killing was by one resisting the crime.

I would affirm the conviction based upon the statutory language found in K.S.A. 21-3401, the decision in Hoang, and the cases cited from other jurisdictions.

McFarland, C.J., and Davis, J., join in the foregoing dissenting opinion.

Justice Stevens

delivered the opinion of the Court.

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the *307reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U. S. 302 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution.

I

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Jones and Atkins both testified in the guilt phase of Atkins’ trial.1 Each confirmed most of the details in the other’s account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones’ testimony, which was both more coherent and credible than Atkins’, was obviously credited by the jury and was sufficient to establish Atkins’ guilt.2 At the penalty *308phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and “vileness of the offense.” To prove future dangerousness, the State relied on Atkins’ prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased’s body and the autopsy report.

In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.”3 His conclusion was based on interviews with people who knew Atkins,4 a review of school and court *309records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59.5

The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445 (1999). At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of “average intelligence, at least,” and diagnosable as having antisocial personality disorder.6 App. 476. The jury again sentenced Atkins to death.

*310The Supreme Court of Virginia affirmed the imposition of the death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000). Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend “that he is mentally retarded and thus cannot be sentenced to death.” Id., at 386, 534 S. E. 2d, at 318. The majority of the state court rejected this contention, relying on our holding in Penry. 260 Va., at 387, 534 S. E. 2d, at 319. The court was “not willing to commute Atkins’ sentence of death to life imprisonment merely because of his IQ score.” Id., at 390, 534 S. E. 2d, at 321.

Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenow’s opinion that Atkins possesses average intelligence as “incredulous as a matter of law,” and concluded that “the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.” Id., at 394, 395-396, 534 S. E. 2d, at 323-324. In their opinion, “it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts. By definition, such individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way.” Id., at 397, 534 S. E. 2d, at 325.

Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry case. 533 U. S. 976 (2001).

*311II

The Eighth Amendment succinctly prohibits “[e]xcessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Weems v. United States, 217 U. S. 349 (1910), we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained “that it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Id., at 367. We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U. S. 957, 997-998 (1991) (Kennedy, J., concurring in part and concurring in judgment); see also id., at 1009-1011 (White, J., dissenting).7 Thus, even though “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” it may not be imposed as a penalty for “the ‘status’ of narcotic addiction,” Robinson v. California, 370 U. S. 660, 666-667 (1962), because such a sanction would be excessive. As Justice Stewart explained in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id., at 667.

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958): “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. . . . The Amendment must draw its meaning from the *312evolving standards of decency that mark the progress of a maturing society.” Id., at 100-101.

Proportionality review under those evolving standards should be informed by “ ‘objective factors to the maximum possible extent,’ ” see Harmelin, 501 U. S., at 1000 (quoting Rummel v. Estelle, 445 U. S. 263, 274-275 (1980)). We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Penry, 492 U. S., at 331. Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593-596 (1977), or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789-793 (1982). In Coker, we focused primarily on the then-recent legislation that had been enacted in response to our decision 10 years earlier in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to support the conclusion that the “current judgment,” though “not wholly unanimous,” weighed very heavily on the side of rejecting capital punishment as a “suitable penalty for raping an adult woman.” Coker, 433 U. S., at 596. The “current legislative judgment” relevant to our decision in Enmund was less clear than in Coker but “nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at issue.” Enmund, 458 U. S., at 793.

We also acknowledged in Coker that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” 433 U. S., at 597. For example, in Enmund, we concluded by expressing our own judgment about the issue:

“For purposes of imposing the death penalty, Enmund’s criminal culpability must be limited to his participation *313in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.” 458 U. S., at 801 (emphasis added).

Thus, in cases involving a consensus, our own judgment is “brought to bear,” Coker, 438 U. S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

III

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to. 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia8 apparently led to the enact*314ment of the first state statute prohibiting such executions.9 In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.”10 In 1989, Maryland enacted a similar prohibition.11 It was in that year that we decided Penry, and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.” 492 U. S., at 334.

Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry, state legislatures across the country began to address the issue. In 1990, Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994.12 In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded.13 Nebraska followed suit in 1998.14 There appear *315to have been no similar enactments during the next two years, but in 2000 and 2001 six more States — South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina-joined the procession.15 The Texas Legislature unanimously adopted a similar bill,16 and bills have passed at least one house in other States, including Virginia and Nevada.17

It is not so much the number of these States that is significant, but the consistency of the direction of change.18 Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the *316complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition.19 Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry.20 The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.21

*317To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U. S. 899 (1986), with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id., at 405, 416-417.22

IV

This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.

*318As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.23 There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders.24 Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as *319a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund, 458 U. S., at 798.

With respect to retribution — the interest in seeing that the offender gets his “just deserts” — the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980), we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Id., at 433. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence — the interest in preventing capital crimes by prospective offenders — “it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,’ ” Enmund, 458 U. S., at 799. Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Gregg, 428 U. S., at 186, Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded *320offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable — for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses — that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio, 438 U. S. 586, 605 (1978), is enhanced, not only by the possibility of false confessions,25 but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and *321are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. 492 U. S., at 323-325. Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. Ford, 477 U. S., at 405.

The judgment of the Virginia Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Chief Justice Rehnquist,

with whom Justice Scalia and Justice Thomas join, dissenting.

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i. e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces *322the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante, at 314-315.

I agree with Justice Scalia, post, at 337-338 (dissenting opinion), that the Court’s assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority’s subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante, at 316-317, n. 21. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.

In making determinations about whether a punishment is “cruel and unusual” under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the “clearest and most reliable objective *323evidence of contemporary values.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989). See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987). The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. “‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U. S. 153, 175-176 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) (Burger, C. J., dissenting)). And because the specifications of punishments are “peculiarly questions of legislative policy,” Gore v. United States, 357 U. S. 386, 393 (1958), our cases have cautioned against using “The aegis of the Cruel and Unusual Punishment Clause’ ” to cut off the normal democratic processes, Gregg, supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).

Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable objective index of contemporary values,’” Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg, supra, at 181), because of the jury’s intimate involvement in the case and its function of “ ‘maintaining] a link between contemporary community values and the penal system,’ ” Gregg, supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)). In Coker, supra, at 596-597, for example, we credited data showing that “at least 9 out of 10” juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793-794 (1982), where evidence of the current legislative judgment was not as “compelling” as that in Coker (but more so than that here), we were persuaded by “overwhelming [evidence] that American juries ... repudiated imposition of the death penalty” for a defendant who neither took life nor attempted or intended to take life.

*324In my view, these two sources — the work product of legislatures and sentencing jury determinations — ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.

In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.* Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante, at 316-317, n. 21 (citing the Brief for European Union as Amicus Curiae 2). I fail to see, how*325ever, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” Coker, supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund, supra, at 796-797, n. 22; Trop v. Dulles, 356 U. S. 86, 102-103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford, 492 U. S., at 369, n. 1 (emphasizing that “American conceptions of decency . . . are dispositive” (emphasis in original)).

Stanford’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund, Coker, or Trop suggests otherwise. Thompson, Enmund, and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality — representing the view of only a minority of the Court — offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford.

To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante, at 316-317, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae; Brief for American Association on Mental Retardation et al. as Amici Curiae; noting that “representatives of widely diverse reli*326gious communities . .. reflecting Christian, Jewish, Muslim, and Buddhist traditions ... ‘share a conviction that the execution of persons with mental retardation cannot be morally justified’ and stating that “polling data shows a widespread consensus among Americans ... that executing the mentally retarded is wrong”). In my view, none should be accorded any weight on the Eighth Amendment scale when the elected representatives of a State’s populace have not deemed them persuasive enough to prompt legislative action. In Penry, 492 U. S., at 334-335, we were cited similar data and declined to take them into consideration where the “public sentiment expressed in [them]” had yet to find expression in state law. See also Stanford, 492 U. S., at 377 (plurality opinion) (refusing “the invitation to rest constitutional law upon such uncertain foundations” as “public opinion polls, the views of interest groups, and the positions adopted by various professional associations”). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat — at the behest of private organizations speaking only for themselves — a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.

Even if I were to accept the legitimacy of the Court’s decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e. g., R. Groves, Survey *327Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).

The Federal Judicial Center’s Reference Manual on Scientific Evidence 221-271 (1994) and its Manual for Complex Litigation § 21.493, pp. 101-103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical (e. g., “Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?”), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, régardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as *328evidence at trial, where their sponsors can be examined and cross-examined about these matters.

* * *

There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds “further support to [its] conclusion” that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante, at 817, n. 21. Believing this view to be seriously mistaken, I dissent.

APPENDIX TO OPINION OF REHNQUIST, C. J.

Poll and survey results reported in Brief for American Association on Mental Retardation et al. as Amici Curiae 3a-7a, and cited by the Court, ante, at 317, n. 21:

*329

*330

*331

*332

*333

*334

*335

*336

*337

Justice Scalia,

with whom The Chief Justice and Justice Thomas join, dissenting.

Today’s decision fe the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render *338an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.

H-I

I begin with a brief restatement of facts that are abridged by the Court but important to understanding this case. After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.

The jury convicted Atkins of capital murder. At resen-tencing (the Virginia Supreme Court affirmed his conviction but remanded for resentencing because the trial court had used an improper verdict form, 257 Va. 160, 179, 510 S. E. 2d 445, 457 (1999)), the jury heard extensive evidence of petitioner’s alleged mental retardation. A psychologist testified that petitioner was mildly mentally retarded with an IQ of 59, that he was a “slow learner,” App. 444, who showed a “lack of success in pretty much every domain of his life,” id., at 442, and that he had an “impaired” capacity to appreciate the criminality of his conduct and to conform his conduct to the law, id., at 453. Petitioner’s family members offered additional evidence in support of his mental retardation claim (e. g., that petitioner is a “follower,” id., at 421). The Commonwealth contested the evidence of retardation and presented testimony of a psychologist who found “absolutely no evidence other than the IQ score ... indicating that [peti*339tioner] was in the least bit mentally retarded” and concluded that petitioner was “of average intelligence, at least.” Id., at 476.

The jury also heard testimony about petitioner’s 16 prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming. Id., at 491-522. The victims of these offenses provided graphic depictions of petitioner’s violent tendencies: He hit one over the head with a beer bottle, id., at 406; he slapped a gun across another victim’s face, clubbed her in the head with it, knocked her to the ground, and then helped her up, only to shoot her in the stomach, id., at 411-413. The jury sentenced petitioner to death. The Supreme Court of Virginia affirmed petitioner’s sentence. 260 Va. 375, 534 S. E. 2d 312 (2000).

II

As the foregoing history demonstrates, petitioner’s mental retardation was a central issue at sentencing. The jury concluded, however, that his alleged retardation was not a compelling reason to exempt him from the death penalty in light of the brutality of his crime and his long demonstrated propensity for violence. “In upsetting this particularized judgment on the basis of a constitutional absolute,” the Court concludes that no one who is even slightly mentally retarded can have sufficient “moral responsibility to be subjected to capital punishment for any crime. As a sociological and moral conclusion that is implausible; and it is doubly implausible as an interpretation of the United States Constitution.” Thompson v. Oklahoma, 487 U. S. 815, 863-864 (1988) (Scalia, J., dissenting).

Under our Eighth Amendment jurisprudence, a punishment is “cruel and unusual” if it falls within one of two categories: “those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted,” Ford v. Wainwright, 477 U. S. 399, 405 (1986), and modes of punishment that are inconsistent with *340modern “‘standards of decency/” as evinced by objective indicia, the most important of which is “legislation enacted by the country’s legislatures,” Penry v. Lynaugh, 492 U. S. 302, 330-331 (1989).

The Court makes no pretense that execution of the mildly mentally retarded would have been considered “cruel and unusual” in 1791. Only the severely or profoundly mentally retarded, commonly known as “idiots,” enjoyed any special status under the law at that time. They, like lunatics, suffered a “deficiency in will” rendering them unable to tell right from wrong. 4 W. Blackstone, Commentaries on the Laws of England 24 (1769) (hereinafter Blackstone); see also Penry, 492 U. S., at 331-332 (“[T]he term ‘idiot’ was generally used to describe persons who had a total lack of reason or understanding, or an inability to distinguish between good and evil”); id., at 333 (citing sources indicating that idiots generally had an IQ of 25 or below, which would place them within the “profound” or “severe” range of mental retardation under modern standards); 2 A. Fitz-Herbert, Natura Brevium 233B (9th ed. 1794) (originally published 1534) (An idiot is “such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is, etc., so as it may appear that he hath no understanding of reason what shall be for his profit, or what for his loss”). Due to their incompetence, idiots were “ex-euse[d] from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses.” 4 Blackstone 25; see also Penry, supra, at 331. Instead, they were often committed to civil confinement or made wards of the State, thereby preventing them from “go[ing] loose, to the terror of the king’s subjects.” 4 Blackstone 25; see also S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 12-14 (3d ed. 1985); 1 Blackstone 292-296; 1 M. Hale, Pleas of the Crown 33 (1st Am. ed. 1847). Mentally retarded offenders with less severe impairments— those who were not “idiots” — suffered criminal prosecution *341and punishment, including capital punishment. See, e. g., I. Ray, Medical Jurisprudence of Insanity 65, 87-92 (W. Over-holser ed. 1962) (recounting the 1834 trial and execution in Concord, New Hampshire, of an apparent “imbecile” — imbecility being a less severe form of retardation which “differs from idiocy in the circumstance that while in [the idiot] there is an utter destitution of every thing like reason, [imbeciles] possess some intellectual capacity, though infinitely less than is possessed by the great mass of mankind”); A. Highmore, Law of Idiocy and Lunacy 200 (1807) (“The great difficulty in all these cases, is to determine where a person shall be said to be so far deprived of his sense and memory as not to have any of his actions imputed to him: or where notwithstanding some defects of this kind he still appears to have so much reason and understanding as will make him accountable for his actions ...”).

The Court is left to argue, therefore, that execution of the mildly retarded is inconsistent with the “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion) (Warren, C. J.). Before today, our opinions consistently emphasized that Eighth Amendment judgments regarding the existence of social “standards” “should be informed by objective factors to the maximum possible extent” and “should not be, or appear to be, merely the subjective views of individual Justices.” Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion); see also Stanford v. Kentucky, 492 U. S. 361, 369 (1989); McCleskey v. Kemp, 481 U. S. 279, 300 (1987); Enmund v. Florida, 458 U. S. 782, 788 (1982). “First” among these objective factors are the “statutes passed by society’s elected representatives,” Stanford, supra, at 370; because it “will rarely if ever be the case that the Members of this Court will have a better sense of the evolution in views of the American people than do their elected representatives,” Thompson, supra, at 865 (Scalia, J., dissenting).

*342The Court pays lipservice to these precedents as it miraculously extracts a “national consensus” forbidding execution of the mentally retarded, ante, at 316, from the fact that 18 States — less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists) — have very recently enacted legislation barring execution of the mentally retarded. Even that 47% figure is a distorted one. If one is to say, as the Court does today, that all executions of the mentally retarded are so morally repugnant as to violate our national “standards of decency,” surely the “consensus” it points to must be one that has set its righteous face against all such executions. Not 18 States, but only 7 — 18% of death penalty jurisdictions — have legislation of that scope. Eleven of those that the Court counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective date of the legislation;1 those already on death row, or consigned there before the statute’s effective date, or even (in those States using the date of the crime as the criterion of retroactivity) tried in the future for murders committed many years ago, could be put to death. That is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches. Two of these States permit execution of the mentally retarded in other situations as well: Kansas apparently permits execution of all *343except the severely mentally retarded;2 New York permits execution of the mentally retarded who commit murder in a correctional facility. N. Y. Crim. Proc. Law § 400.27.12(d) (McKinney 2001); N. Y. Penal Law § 125.27 (McKinney 2002).

But let us accept, for the sake of argument, the Court’s faulty count. That bare number of States alone — 18— should be enough to convince any reasonable person that no “national consensus” exists. How is it possible that agreement among 47% of the death penalty jurisdictions amounts to “consensus”? Our prior cases have generally required a much higher degree of agreement before finding a punishment cruel and unusual on “evolving standards” grounds. In Coker, supra, at 595-596, we proscribed the death penalty for rape of an adult woman after finding that only one jurisdiction, Georgia, authorized such a punishment. In En-mund, supra, at 789, we invalidated the death penalty for mere participation in a robbery in which an accomplice took a life, a punishment not permitted in 28 of the death penalty States (78%). In Ford, 477 U. S., at 408, we supported the common-law prohibition of execution of the insane with the observation that “[t]his ancestral legacy has not outlived its time,” since not a single State authorizes such punishment. In Solem, v. Helm, 468 U. S. 277, 300 (1983), we invalidated a life sentence without parole under a recidivist statute by which the criminal “was treated more severely than he would have been in any other State.” What the Court calls evidence of “consensus” in the present case (a fudged 47%) more closely resembles evidence that we found inadequate *344to establish consensus in earlier cases. Tison v. Arizona, 481 U. S. 137, 154, 158 (1987), upheld a state law authorizing capital punishment for major participation in a felony with reckless indifference to life where only 11 of the 37 death penalty States (30%) prohibited such punishment. Stanford, 492 U. S., at 372, upheld a state law permitting execution of defendants who committed a capital crime at age 16 where only 15 of the 36 death penalty States (42%) prohibited death for such offenders.

Moreover, a major factor that the Court entirely disregards is that the legislation of all 18 States it relies on is still in its infancy. The oldest of the statutes is only 14 years old;3 five were enacted last year;4 over half were enacted within the past eight years.5 Few, if any, of the States have had sufficient experience with these laws to know whether they are sensible in the long term. It is “myopic to base sweeping constitutional principles upon the narrow experience of [a few] years.” Coker, 433 U. S., at 614 (Burger, C. J., dissenting); see also Thompson, 487 U. S., at 854-855 (O’Connor, J., concurring in judgment).

The Court attempts to bolster its embarrassingly feeble evidence of “consensus” with the following: “It is not so much the number of these States that is significant, but the consistency of the direction of change.” Ante, at 315 (emphasis added). But in what other direction could we possibly see change? Given that 14 years ago all the death penalty statutes included the mentally retarded, any change (except precipitate undoing of what had just been done) was bound *345to be in the one direction the Court finds significant enough to overcome the lack of real consensus. That is to say, to be accurate the Court’s “consistency-of-the-direction-of-change” point should be recast into the following unimpressive observation: “No State has yet undone its exemption of the mentally retarded, one for as long as 14 whole years.” In any event, reliance upon “trends,” even those of much longer duration than a mere 14 years, is a perilous basis for constitutional adjudication, as Justice O’Connor eloquently explained in Thompson:

“In 1846, Michigan became the first State to abolish the death penalty.... In succeeding decades, other American States continued the trend towards abolition .... Later, and particularly after World War II, there ensued a steady and dramatic decline in executions .... In the 1950’s and 1960’s, more States abolished or radically restricted capital punishment, and executions ceased completely for several years beginning in 1968....

“In 1972, when this Court heard arguments on the constitutionality of the death penalty, such statistics might have suggested that the practice had become a relic, implicitly rejected by a new societal consensus. ... We now know that any inference of a societal consensus rejecting the death penalty would have been mistaken. But had this Court then declared the existence of such a consensus, and outlawed capital- punishment, legislatures would very likely not have been able to revive it. The mistaken premise of the decision would have been frozen into constitutional law, making it difficult to refute and even more difficult to reject.” 487 U. S., at 854-855.

Her words demonstrate, of course, not merely the peril of riding a trend, but also the peril of discerning a consensus where there is none.

*346The Court’s thrashing about for evidence of “consensus” includes reliance upon the margins by which state legislatures have enacted bans on execution of the retarded. Ante, at 316. Presumably, in applying our Eighth Amendment “evolving-standards-of-decency” jurisprudence, we will henceforth weigh not only how many States have agreed, but how many States have agreed by how much. Of course if the percentage of legislators voting for the bill is significant, surely the number of people represented by the legislators voting for the bill is also significant: the fact that 49% of the legislators in a State with a population of 60 million voted against the bill should be more impressive than the fact that 90% of the legislators in a State with a population of 2 million voted for it. (By the way, the population of the death penalty States that exclude the mentally retarded is only 44% of the population of all death penalty States. U. S. Dept, of Commerce, Bureau of Census, Statistical Abstract of the United States 21 (121st ed. 2001).) This is quite absurd. What we have looked for in the past to “evolve” the Eighth Amendment is a consensus of the same sort as the consensus that adopted the Eighth Amendment: a consensus of the sovereign States that form the Union, not a nose count of Americans for and against.

Even less compelling (if possible) is the Court’s argument, ante, at 316, that evidence of “national consensus” is to be found in the infrequency with which retarded persons are executed in States that do not bar their execution. To begin with, what the Court takes as true is in fact quite doubtful. It is not at all clear that execution of the mentally retarded is “uncommon,” ibid., as even the sources cited by the Court suggest, see ante, at 316, n. 20 (citing D. Keyes, W. Edwards, & R. Perske, People with Mental Retardation are Dying Legally, 35 Mental Retardation (Feb. 1997) (updated by Death Penalty Information Center, available at http://www.advocacyone.org/deathpenalty.html (as visited *347June 12, 2002) (showing that 12 States executed 35 allegedly mentally retarded offenders during the period 1984-2000)). See also Bonner & Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7,2000, p. Al (reporting that 10% of death row inmates are retarded). If however, execution of the mentally retarded is “uncommon”; and if it is not a sufficient explanation of this that the retarded constitute a tiny fraction of society (1% to 3%), Brief for American Psychological Association et al. as Amici Curiae 7; then surely the explanation is that mental retardation is a constitutionally mandated mitigating factor at sentencing, Penry, 492 U. S., at 328. For that reason, even if there were uniform national sentiment in favor of executing the retarded in appropriate cases, one would still expect execution of the mentally retarded to be “uncommon.” To adapt to the present case what the Court itself said in Stanford, 492 U. S., at 374: “[I]t is not only possible, but overwhelmingly probable, that the very considerations which induce [today’s majority] to believe that death should never be imposed on [mentally retarded] offenders . . . cause prosecutors and juries to believe that it should rarely be imposed.”

But the Prize for the Court’s Most Feeble Effort to fabricate “national consensus” must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called “world community,” and respondents to opinion polls. Ante, at 316-317, n. 21. I agree with The Chief Justice, ante, at 325-328 (dissenting opinion), that the views of professional and religious organizations and the results of opinion polls are irrelevant.6 Equally irrelevant are the practices of the *348“world community,” whose notions of justice are (thankfully) not always those of our people. “We must never forget that it is a Constitution for the United States of America that we are expounding. .. . [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.” Thompson, 487 U. S., at 868-869, n. 4 (Scalia, J., dissenting).

Ill

Beyond the empty talk of a “national consensus,” the Court gives us a brief glimpse of what really underlies today’s decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people. “ ‘[T]he Constitution,’ ” the Court says, “contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Ante, at 312 (quoting Coker, 433 U. S., at 697) (emphasis added). (The unexpressed reason for this unexpressed “contemplation” of the Constitution is presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.) The arrogance of this assumption of power takes one’s breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus. It is just a game, after all. “‘[I]n the end,’” Thompson, supra, at 823, n. 8 (plurality opinion (quoting Coker, supra, at 697 (plurality opinion))), it is the feelings and intuition of a majority of the Justices that count — “the perceptions of decency, or of penology, or of mercy, entertained ... by a majority of the small and *349unrepresentative segment of our society that sits on this Court.” Thompson, supra, at 873 (Scalia, J., dissenting).

The genuinely operative portion of the opinion, then, is the Court’s statement of the reasons why it agrees with the contrived consensus it has found, that the “diminished capacities” of the mentally retarded render the death penalty excessive. Ante, at 317-321. The Court’s analysis rests on two fundamental assumptions: (1) that the Eighth Amendment prohibits excessive punishments, and (2) that sentencing juries or judges are unable to account properly for the “diminished capacities” of the retarded. The first assumption is wrong, as I explained at length in Harmelin v. Michigan, 501 U. S. 957, 966-990 (1991) (opinion of Scalia, J.). The Eighth Amendment is addressed to always-and-everywhere “cruel” punishments, such as the rack and the thumbscrew. But where the punishment is in itself permissible, “[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions.” Id., at 990. The second assumption — inability of judges or juries to take proper account of mental retardation — is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters:

“[I]t is very difficult to define the indivisible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed and considered both by the judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature, or on the other side too great an indulgence given to great crimes ....” 1 Hale, Pleas of the Crown, at 30.

Proceeding from these faulty assumptions, the Court gives two reasons why the death penalty is an excessive punishment for all mentally retarded offenders. First, the “dimin*350ished capacities” of the mentally retarded raise a “serious question” whether their execution contributes to the “social purposes” of the death penalty, viz., retribution and deterrence. Ante, at 318-319. (The Court conveniently ignores a third “social purpose” of the death penalty — “incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future,” Gregg v. Georgia, 428 U. S. 153, 183, n. 28 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). But never mind; its discussion of even the other two does not bear analysis.) Retribution is not advanced, the argument goes, because the mentally retarded are no more culpable than the average murderer, whom we have already held lacks sufficient culpability to warrant the death penalty, see Godfrey v. Georgia, 446 U. S. 420, 433 (1980) (plurality opinion). Ante, at 319. Who says so? Is there an established correlation between mental acuity and the ability to conform one’s conduct to the law in such a rudimentary matter as murder? Are the mentally retarded really more disposed (and hence more likely) to commit willfully cruel and serious crime than others? In my experience, the opposite is true: being childlike generally suggests innocence rather than brutality.

Assuming, however, that there is a direct connection between diminished intelligence and the inability to refrain from murder, what scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture-killing is “no more culpable” than the “average” murderer in a holdup-gone-wrong or a domestic dispute? Or a moderately retarded individual who commits a series of 20 exquisite torture-killings? Surely culpability, and deservedness of the most severe retribution, depends not merely (if at all) upon the mental capacity of the criminal (above the level where he is able to distinguish right from wrong) but also upon the depravity of the crime — which is precisely why this sort of question has traditionally been thought answerable not by a categorical rule of the sort the Court today *351imposes upon all trials, but rather by the sentencer’s weighing of the circumstances (both degree of retardation and depravity of crime) in the particular case. The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders. By what principle of law, science, or logic can the Court pronounce that this is wrong? There is none. Once the Court admits (as it does) that mental retardation does not render the offender morally blameless, ante, at 318, there is no basis for saying that the death penalty is never appropriate retribution, no matter how heinous the crime. As long as a mentally retarded offender knows “the difference between right and wrong,” ibid., only the sentencer can assess whether his retardation reduces his culpability enough to exempt him from the death penalty for the particular murder in question.

As for the other social purpose of the death penalty that the Court discusses, deterrence: That is not advanced, the Court tells us, because the mentally retarded are “less likely” than their nonretarded counterparts to “process the information of the possibility of execution as a penalty and ... control their conduct based upon that information.” Ante, at 320. Of course this leads to the same conclusion discussed earlier — that the mentally retarded (because they are less deterred) are more likely to kill — which neither I nor the society at large believes. In any event, even the Court does not say that all mentally retarded individuals cannot “process the information of the possibility of execution as a penalty and . . . control their conduct based upon that information”; it merely asserts that they are “less likely” to be able to do so. But surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class. Virginia’s death penalty, for example, does not fail of its deterrent effect simply because some criminals are unaware that Virginia has the death penalty. In other words, the supposed fact that some *352retarded criminals cannot fully appreciate the death penalty has nothing to do with the deterrence rationale, but is simply an echo of the arguments denying a retribution rationale, discussed and rejected above. I am not sure that a murderer is somehow less blameworthy if (though he knew his act was wrong) he did not fully appreciate that he could die for it; but if so, we should treat a mentally retarded murderer the way we treat an offender who may be “less likely” to respond to the death penalty because he was abused as a child. We do not hold him immune from capital punishment, but require his background to be considered by the sentencer as a mitigating factor. Eddings v. Oklahoma, 455 U. S. 104, 113-117 (1982).

The Court throws one last factor into its grab bag of reasons why execution of the retarded is “excessive” in all cases: Mentally retarded offenders “face a special risk of wrongful execution” because they are less able “to make a persuasive showing of mitigation,” “to give meaningful assistance to their counsel,” and to be effective witnesses. Ante, at 320-321. “Special risk” is pretty flabby language (even flabbier than “less likely”) — and I suppose a similar “special risk” could be said to exist for just plain stupid people, inarticulate people, even ugly people. If this unsupported claim has any substance to it (which I doubt), it might support a due process claim in all criminal prosecutions of the mentally retarded; but it is hard to see how it has anything to do with an Eighth Amendment claim that execution of the mentally retarded is cruel and unusual. We have never before held it to be cruel and unusual punishment to impose a sentence in violation of some other constitutional imperative.

* * *

Today’s opinion adds one more to the long list of substantive and procedural requirements impeding imposition of the death penalty imposed under this Court’s assumed power to invent a death-is-different jurisprudence. None of those *353requirements existed when the Eighth Amendment was adopted, and some of them were not even supported by current moral consensus. They include prohibition of the death penalty for “ordinary” murder, Godfrey, 446 U. S., at 433, for rape of an adult woman, Coker, 433 U. S., at 592, and for felony murder absent a showing that the defendant possessed a sufficiently culpable state of mind, Enmund, 458 U. S., at 801; prohibition of the death penalty for any person under the age of 16 at the time of the crime, Thompson, 487 U. S., at 838 (plurality opinion); prohibition of the death penalty as the mandatory punishment for any crime, Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion), Sumner v. Shuman, 483 U. S. 66, 77-78 (1987); a requirement that the sentencer not be given unguided discretion, Furman v. Georgia, 408 U. S. 238 (1972) (per cu-riam), a requirement that the sentencer be empowered to take into account all mitigating circumstances, Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion), Eddings v. Oklahoma, supra, at 110; and a requirement that the accused receive a judicial evaluation of his claim of insanity before the sentence can be executed, Ford, 477 U. S., at 410-411 (plurality opinion). There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court.

This newest invention promises to be more effective than any of the others in turning the process of capital trial into a game. One need only read the definitions of mental retardation adopted by the American Association on Mental Retardation and the American Psychiatric Association (set forth in the Court’s opinion, ante, at 308, n. 3) to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), Jones v. United States, 463 U. S. 354, 370, and n. 20 (1983), the capital defendant who feigns mental retardation risks nothing at all. The mere pendency *354of the present case has brought us petitions by death row inmates claiming for the first time, after multiple habeas petitions, that they are retarded. See, e. g., Moore v. Texas, 535 U. S. 1044 (2002) (Scalia, J., dissenting from grant of applications for stay of execution).

Perhaps these practical difficulties will not be experienced by the minority of capital-punishment States that have very recently changed mental retardation from a mitigating factor (to be accepted or rejected by the sentencer) to an absolute immunity. Time will tell — and the brief time those States have had the new disposition in place (an average of 6.8 years) is surely not enough. But if the practical difficulties do not appear, and if the other States share the Court’s perceived moral consensus that all mental retardation renders the death penalty inappropriate for all crimes, then that majority will presumably follow suit. But there is no justification for this Court’s pushing them into the experiment— and turning the experiment into a permanent practice — on constitutional pretext. Nothing has changed the accuracy of Matthew Hale’s endorsement of the common law’s traditional method for taking account of guilt-reducing factors, written over three centuries ago:

“[Determination of a person’s incapacity] is a matter of great difficulty, partly from the easiness of counterfeiting this disability ... and partly from the variety of the degrees of this infirmity, whereof some are sufficient, and some are insufficient to excuse persons in capital offenses... .

“Yet the law of England hath afforded the best method of trial, that is possible, of this and all other matters of fact, namely, by a jury of twelve men all concurring in the same judgment, by the testimony of witnesses . . . , and by the inspection and direction of the judge.” 1 Pleas of the Crown, at 32-33.

I respectfully dissent.