Does Defendant have to prove that malice is presumed under the felony-murder rule?

We do not question defendant's major premise, i.e., that due process requires proof beyond a reasonable doubt of each element of the crime charged. (See Pen.Code, 1096; People v. Vann (1974) 12 Cal.3d 220, 225-228, 115 Cal.Rptr. 352, 524 P.2d 824.) Defendant's minor premise, however, is flawed by an incorrect view of the substantive law of felony murder in California. To be sure, numerous opinions of this court recite that malice is "presumed" (or a cognate phrase) by operation of the felony-murder rule. ²⁰ But none of those opinions speaks to the constitutional [34 Cal.3d 474] issue now raised, and their language is therefore not controlling. (In re Tartar (1959) 52 Cal.2d 250, 258, 339 P.2d 553, and cases cited.)

Page 410