¶1Defendant fired a handgun repeatedly into the apartment of Michael Behaves, killing 13-year-old Diane Rosalez. A jury convicted defendant of second degree murder after the trial court gave an instruction defining second degree felony murder and instructed the jury that discharging a firearm at an inhabited dwelling in violation of Penal Code section 246 was an “inherently dangerous felony” that could serve as the predicate felony for second degree felony murder.
¶2The majority concludes, and I agree, that the offense of discharging a firearm at an inhabited dwelling is indeed an inherently dangerous felony for purposes of the second degree felony-murder rule, because under the standard articulated in my lead opinion in People v. Patterson (1989) 49 Cal.3d 615, 627 [262 Cal.Rptr. 195, 778 P.2d 549], it is “an offense carrying ‘a high probability’ that death will result.” This court has never held that for a felony to pose a high probability of death, death must result from the commission of the felony in a majority, or even in a great percentage, of instances. Nor is it necessary in this case to define the outer limits of that term. The drive-by shootings that now plague our cities frequently result in the death of someone inside a residence. Even with no one present in the targeted house, the act of shooting at an inhabited house or apartment creates a substantial or serious risk of death to occupants of neighboring houses or to passersby. For these reasons, I agree with the majority that this offense is an inherently dangerous felony for purposes of the second degree felony-murder rule.
¶3I disagree with the majority, however, when it concludes that the felony of discharging a weapon at an inhabited dwelling is one that does not “merge” with the resulting homicide within the meaning of our decision in People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323]. Under Ireland, which has been the law of this state for more than 25 years, a conviction for second degree felony murder cannot rest on a felony assault “that is an integral part of the homicide” and that, based on the prosecution’s evidence, is “included in fact” within the resulting homicide. (Id. at p. 539, original italics.) Later decisions have added that a defendant’s commission of a felony will support a felony murder conviction only if the defendant entertained some “independent felonious purpose” beyond mere assault. (People v. Burton (1971) 6 Cal.3d 375, 387 [99 Cal.Rptr. 1, 491 P.2d 793]; People v. Taylor (1970) 11 Cal.App.3d 57, 63 [89 Cal.Rptr. 697], cited *330with approval in People v. Mattison (1971) 4 Cal.3d 177, 185 [93 Cal.Rptr. 185, 481 P.2d 193].) Here, the prosecution’s evidence did not show that defendant had any independent felonious purpose for discharging the firearm at the Echaves residence. That conduct satisfies this court’s definition of an assault. (People v. Colantuono (1994) 7 Cal.4th 206, 218 [26 Cal.Rptr.2d 908, 865 P.2d 704].) As Justice Mosk observes, it was “a willful act ‘likely to result in . . . physical force’ against another.” (Cone. & dis. opn., ante, at p. 326].) As such, in this case the underlying felony of discharging a firearm at an inhabited dwelling house “merges” with the resulting homicide and cannot support the second degree murder conviction.
¶4Although from the facts of this case a jury could find that the defendant harbored malice and accordingly could base a second degree murder conviction on an implied malice theory (rather than a felony-murder theory), I agree with Justice Mosk that defendant’s second degree felony-murder conviction must be reversed because the record does not reveal whether the jury ever made the findings necessary to support a second degree murder conviction premised on implied malice. I would remand this case to give the prosecution the opportunity to retry the murder charge on a theory of implied malice.
¶5Appellant’s petition for a rehearing was denied February 23, 1995. Mosk, J., and Kennard, J. were of the opinion that the petition should be granted.