A defendant convicted of second degree murder under two prosecution theories, one of which was later found invalid by the California Supreme Court, is entitled to a new trial. The defendant was charged with second degree murder following a high speed chase in which he evaded police and collided with another vehicle, killing the driver. The jury was instructed under two theories of second degree murder: implied malice, and felony murder based on a violation of Vehicle Code section 2800.2. Following the California Supreme Court’s holding in People v. Howard (2005) 34 Cal.4th 1129, the People conceded that the latter instruction was error, but argued that in this case the error was harmless because, under the instructions actually given, the jury necessarily found implied malice if they found that defendant harbored the mental state necessary for felony murder based on a violation of section 2800.2. The Fifth District rejected this argument, determining that “willful and wanton disregard for the safety of persons” and “conscious disregard for human life” are not equivalent mental states. Under the instructions given, therefore, a jury finding the mental state required for felony murder would not necessarily have found the mental state required for implied malice murder.