Whether the judge or the jury decides the issue of intent in a second-degree felony murder case where the underlying felony is inherently dangerous as a matter of law

QUESTION PRESENTED At the time of the offense, Massachusetts’ common-law crime of second degree felony murder had three elements: 1) the commission or attempted commission of a non-life felony; 2) a death occurring during the commission of the underlying felony; and 3) an underlying felony that was either inherently dangerous or committed with a conscious disregard for the risk to human life. See Commonwealth v. Fantauzzi, 73 N.E.3d 324, 331 n.10 (Mass. App. Ct. 2017). See also Commonwealth v. Garcia, 18 N.E.3d 654, 667 (Mass. 2014) (third element of second-degree felony murder requires felony that is either inherently dangerous or committed with conscious disregard for the risk to human life); Model Jury Instructions on Homicide 60 (2013). Although the intent for homicide is usually malice aforethought, in felony-murder cases such as this one, malice is conclusively presumed from the intent to commit the underlying felony if the underlying felony is inherently dangerous. See Commonwealth v. Brown, 81 N.E.3d 1173, 1195 (Mass. 2017) (where killing occurs during commission of inherently dangerous felony, no proof of actual malice required). This case is about whether the judge or the jury decides this issue of intent. Under Massachusetts common law, some felonies are inherently dangerous as a matter of law. See Commonwealth v. Wadlington, 4 N.E.3d 296, 309 (Mass. 2014) (decisional law has defined certain felonies inherently dangerous as a matter of law). A felony is inherently dangerous as a matter of law if the judge finds a conscious disregard for the risk to human life is implicit in the intent required to ii commit the felony. See Commonwealth v. Scott, 701 N.E.2d 629, 632 (Mass. 1998), quoting Commonwealth v. Cook, 644 N.E.2d 203 (Mass. 1994). This determination is made by the judge “on a case-by-case basis, and sometimes by reference to specific facts.” Commonwealth v. Claudio, 634 N.E.2d 902, 906 (Mass. 1994), overruled on other grounds by Commonwealth v. Britt, 987 N.E.2d 558 (Mass. 2013). If the judge finds the felony inherently dangerous, malice is conclusively presumed and the third element does not go to the jury. If, on the other hand, a conscious disregard for the risk to human life is not implicit as a matter of law in the intent required to commit the felony, then the jury is permitted to decide the question of malice, specifically, whether the defendant acted in conscious disregard for the risk to human life. See Commonwealth v. Tevenal, 515 N.E.2d 1191, 1194 (Mass. 1987). In this case, and over objection, the judge withdrew the third element from the jurors’ consideration, instructing them that arson is inherently dangerous as a matter of law. T7:224-225; T8:24, 108, 124.1 As a result of the judge’s instructions in this case, the only elements that the jurors were required to find beyond a reasonable doubt were 1) Ms. Pfeiffer committed arson; and 2) a death occurred during the commission of the arson. The maximum penalty for an arson conviction, even one that causes death, is twenty years. See Mass. Gen. L. c. 266, § 1. What permitted the life sentence Ms. Pfeiffer ultimately received for felony murder was the finding of fact made by the judge — that arson is inherently dangerous. See 1The record