That defense was eliminated by amendments to the definition of "willful, deliberate, and premeditated killing." Cal. Penal Code § 189; see also People v. Stress, 205 Cal. App. 3d 1259 (1988). 731.

(People v. Honig (1996) 48 Cal.App.4th 289, 328; accord, Winters v. New York (1948) 333 U.S. 507,514; People v. Guthrie (1 983) 144 Cal.App.3d 832, 839.) Moreover, Penal Code section 189 has been amended and reenacted several times in the interim, but none of the changes purported to delete the requirement of specific intent, and "[tlhere is a strong presumption that when the Legislature reenacts a statute which has been judicially construed it adopts the construction placed on the statute by the courts." (Sharon S. v. Superior Court (2003) 3 1 Cal.4th 4 17, 433, citations and internal quotation marks omitted.)

This Court’s decision in Washington wasbased onthe fact that the felony-murderstatute requires that the murder be committed “in the perpetration of” the felony, which was construed as a requirement that the murder be committed in order “to perpetrate the felony,” and therefore that it must be committed by a perpetrator of the felony. Washington, 62 Cal. 2d at 780-81; Cal. Penal Code § 189 (West 2010). In Kainzrants, the death was caused by a victim of the robbery; although the defendant could not be charged with felony- murder, he was convicted of the robbery, first-degree murder under the provocative-act doctrine, and the robbery special circumstance.

" (Code commrs Note foll., Ann. Pen. Code § 189 (1st ed. 1872, Haymond & Burch, commrs.-annotators) p. 83.)" (Mendoza at 909.)

III III III 253 H. The Instructions to the Jury on First-Degree Murder Violated Mr. Rountree's Constitutional Rights Because He Was Charged Only with Second-Degree Malice Murder. In Count One ofthe Information, Mr. Rountree was charged with second degree malice-murder in violation of section 187, not with first degree murder in violation ofPenal Code section 189. (2 CT 463.) However, the jury was instructed with two forms of first-degree murder: deliberate and premeditated murder (CALITC No. 8.

(People v. Ceja (1993) 4 Cal.4th 1134, 1140, fn. 2.) Section 189 provides that a murder “perpetrated by meansof ” lying-in-wait is first degree murder. The time spentlying-in-wait must be ofsufficient duration “such as to show state of mind equivalent to premeditation anddeliberation.”

Initially, the statutory definition offirst-degree murder encompasses a wide range of homicides and associated punishments. See Cal. Penal Code §§ 189, 190. Furthermore, the case law interpreting the statutes confirms the expansive scope of first-degree murder, thus creating a scheme in which “first and second degree murder 652 are indistinguishable and the choice between them is left to the complete discretion of the jury.”

For example, the Penal Code distinguishes between second-degree murder (15-to-life) and first-degree murder (25-to-life), reflecting a judgmentthat these two crimesare not the same in termsofseverity and that they deserve different punishments. See Cal. Penal Code §§ 189, 190(a). Yet, under the Board’s current parole regime, inmates serving these sentences are subject to an identical maximum term (life in prison) that will only be reduced based on a variety of factors, most of which have nothing to do with 17 individual culpability or the commitment offense, and many ofwhich involve subjective assessments of occurrences subsequentto the crime.

This element of malevolenceis significant. Similar to those crimes that the Legislature has statutorily defined as constituting predicate felonies for first degree murder, for example burglary and robbery (Cal. Pen. Code, § 189), it is all too predictable that a malevolent act of assault will either | directly endanger human life, orsuch danger will result when the victim (or a bystander) attempts to defend him orherself. (See e.g., People v. Cervantes (2001) 26 Cal. 4th 860, 867 [discussing the potentially lethal responseof a victim and outcome when a perpetrator instigatesa life- threatening crime in the context of the provocative act murder doctrine].) In fact, as the Court in Jreland observed, the great majority of homicides result from felonious assaults with a deadly weapon or with force likely to producegreat bodily injury.