good morning may it please the court charles but no appearing for appellant gilbert romero your honor i would like to start with what i think is the most important thing to know about this crime and what brought us here breasts basis in the state penal code our first degree felony murder is based on six felonies that are a numerated in being a code section one eighty nine the same is not true of second degree felony murder there are many felonies in california are designated on an ad hoc basis by the courts of appeal as inherently dangerous felonies this  point was made forcefully in a decision delivered in august the concurring opinion by justice marino quote unlike first degree felony murder which is codified in section one eighty nine the second degree felony murder the year two thousand a few months before mr romero trial the california court of appeal the clarity that section two forty six point three violation is and parent lee dangerous felony that was the cla decision in the year two thousand this shooting occurred on october twenty fourth one thousand nine hundred ninety five four and a half years earlier if this were a statutory conclusion one as i say for centuries the conduct was expected common and not illegal number two when it was rendered criminal in one thousand nine hundred eight it was that it was a what we call  a felony misdemeanor it could be charged as a misdemeanor now with the ordinary person think that a crime that was inherently dangerous to human life could be charged as a misdemeanor that does not seem to if you told them that the shooting was in an urban area that's the question is the crime as defined that it's your right the crime has to be viewed in the abstract and viewed in the abstract if you ask a person if i'm out in the countryside of the particular act what we're trying to say is viewed in the abstract you're right it has to be viewed in the abstract but the california courts have not been giving people adequate notice that they did not give people notice that this conduct would not only be deemed a felony but would be deemed an inherently dangerous felony cumin life that's something that's drastically  usually these crimes have been condemned for centuries shooting in an occupied dwelling that's their big example of course shooting at an off i occupied dwelling is inherently dangerous obviously two forty six long you don't think this particular constitutes a violation of the predicate statute we well now wait a minute it's a violation of the predicate statute manslaughter case this is this is not a case in which a person was on notice in one nine hundred ninety five that it could sue mean that they were committing a felony and not a misdemeanor it's old conduct and old phenomenon that is now we want to call inherently dangerous it's just a label it's not it's not as obvious as it was for instance when i was a kid  it wasn't inherently dangerous at least not in the view of most of us that we did yes yes thank you i think if i could reserve the remainder of my time thank you on behalf of people i just would like to know in response to your question the court's question that if it's not grossly negligent it's not going to be a violation of the statute section two forty six point three zero elements of the statute alone indicate that it has to be dangerous and inherently dangerous crime that's not the issue before this court the issue before this court is whe has been held that the unlawful discharge at an inhabited dwelling was inherently dangerous in enhanced and in the opinion itself it went on and on about the inherent dangerous conduct of shooting a farm again clam came four and a half years after this conduct number two it is to assure itself apparently somebody raised this an objection what if this is out in the country they said oh well i'm sure that that you know nobody's going to call that inherently dangerous they don't know that and it's not stated in the jury instructions there's nothing in the jury instructions that would that would lead you to want that kind of alec and said that if it's not in the country it won drug addicted and brain damaged mentally ill and a repeat offender