In what circumstances will the Court overturn a conviction of second-degree murder for a defendant who killed a person while violating Vehicle Code section 2800.3?

In the published portion of this opinion, we agree with defendant that his murder conviction must be reversed because the trial court erred in instructing the jury, pursuant to the felony-murder doctrine, that a person who kills a human being while violating Vehicle Code section 2800.3 is guilty of second degree murder. (Further section references are to the Vehicle Code unless specified otherwise.) We are not the first appellate court to conclude that the violation of section 2800.3 "cannot support a charge of felony murder." (People v. Jones (2000) 82 Cal.App.4th 663, 666.) But we do so for reasons different from those stated in People v. Jones, supra. As we shall explain, in determining whether the felonious violation of section 2800.3 is inherently dangerous to human life as required for application of the second degree felony-murder doctrine, we must look to the elements of the statute in the abstract, rather than to defendant's specific conduct. In doing so, we conclude that, because dispositive elements of section 2800.3 can be satisfied by conduct that does not necessarily pose a high probability of death, it is not a felony inherently dangerous to human life. Thus, section 2800.3 cannot serve as the predicate crime for application of the second degree felony-murder doctrine.