Lead Opinion
In this murder case, the trial court instructed the jury on second degree felony murder with shooting at an occupied vehicle under Penal Code section 246, the underlying felony.
We first discuss the rule’s constitutional basis. Although the rule has long been part of our law, some members of this court have questioned its constitutional validity. We conclude that the rule is based on statute, specifically section 188’s definition of implied malice, and hence is constitutionally valid.
Next we reconsider the contours of the so-called merger doctrine this court adopted in People v. Ireland (1969)
We reverse the judgment of the Court of Appeal, which had found the same error prejudicial. However, the Court of Appeal also found a second error, a finding not before us on review. We remand the matter to the Court of Appeal to decide whether the two errors, in combination, were prejudicial.
I. Facts and Procedural History
We take our facts primarily from the Court of Appeal’s opinion.
Judy Onesavanh and Sophal Ouch were planning a party for their son’s birthday. Around 9:00 p.m. on September 13, 2003, they and a friend, Bounthavy Onethavong, were driving to the store in Stockton in a blue Mitsubishi that Onesavanh’s father owned. Onesavanh’s brother, George, also drives the car. The police consider George to be highly ranked in the Asian Boys street gang (Asian Boys).
Ouch and Onesavanh identified the Honda’s driver as “T-Bird,” known to the police to be Rathana Chan, a member of the Tiny Rascals Gangsters (Tiny Rascals), a criminal street gang. The Tiny Rascals do not get along with the Asian Boys. Chan was never found. The forensic evidence showed that three different guns were used in the shooting, a .22, a .38, and a .44, and at least six bullets were fired. Both the .38 and the .44 struck Onethavong; both shots were lethal. Only the .44 was recovered. It was found at the residence of Sokha and Mao Bun, brothers believed to be members of a gang.
Two months after the shooting, the police stopped a van while investigating another suspected gang shooting. Defendant was a passenger in the van. He was arrested and subsequently made two statements regarding the shooting in this case. He admitted he was in the backseat of the Honda at the time; T-Bird was the driver and there were two other passengers. Later, he also admitted he fired a .38-caliber firearm. He said he did not point the gun at anyone; he just wanted to scare them.
Defendant, who was 16 years old at the time of the shooting, was tried as an adult for his role in the shooting. He was charged with murder, with driveby and gang special circumstances, and with two counts of attempted murder, discharging a firearm from a vehicle, and shooting into an occupied vehicle, all with gang and firearm-use allegations, and with street terrorism. At trial, the prosecution presented evidence that defendant was a member of the Tiny Rascals, and that the shooting was for the benefit of a gang. Defendant testified, denying being a member of the Tiny Rascals or being involved in the shooting.
The prosecution sought a first degree murder conviction. The court also instructed the jury on second degree felony murder based on shooting at an occupied motor vehicle (§ 246) either directly or as an aider and abettor. The jury found defendant guilty of second degree murder. It found the personal-firearm-use allegation not true, but found that a principal intentionally used a firearm and the shooting was committed for the benefit of a criminal street
The Court of Appeal, in an opinion authored by Justice Morrison, reversed the murder conviction and otherwise affirmed the judgment. It found two errors in the case. It held the trial court had properly admitted defendant’s first statement that he had been in the car but that the court should have excluded his subsequent statement that he had fired a gun. It concluded that the latter statement was procured by a false promise of leniency. It found this error harmless beyond a reasonable doubt “as a pure evidentiary matter.” But, partly due to this error, the Court of Appeal also held the trial court erred in instructing the jury on second degree felony murder. It found this error was prejudicial and reversed the murder conviction. It explained: “Second degree felony murder, the only express theory of second degree murder offered to the jury, was based on the underlying felony of shooting into an occupied vehicle. The merger doctrine prevents using an assaultive-type crime as the basis for felony murder unless the underlying crime is committed with an intent collateral to committing an injury that would cause death. Without the evidence of defendant’s statements about the shooting, there was no evidence from which a collateral intent or purpose could be found. Accordingly, it was error to instruct on second degree felony murder and the murder conviction must be reversed.”
Justice Nicholson dissented from the reversal of the murder conviction. Relying on People v. Hansen (1994)
We granted review. Later, we issued an order limiting review to the issues concerning whether the trial court prejudicially erred in instructing the jury on second degree felony murder.
II. Discussion
A. The Constitutionality of the Second Degree Felony-murder Rule
Defendant contends California’s second degree felony-murder rule is unconstitutional on separation of power grounds as a judicially created doctrine with no statutory basis. To explain the issue, we first describe how the doctrine fits in with the law of murder. Then we discuss defendant’s
Section 187, subdivision (a), defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.” Except for the phrase “or a fetus,” which was added in 1970 in response to this court’s decision in Keeler v. Superior Court (1970)
Critical for our purposes is that the crime of murder, as defined in section 187, includes, as an element, malice. Section 188 defines malice. It may be either express or implied. It is express “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) It is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” {Ibid.) This definition of implied malice is quite vague. Trial courts do not instruct the jury in the statutory language of an abandoned and malignant heart. Doing so would provide the jury with little guidance. “The statutory definition of implied malice has never proved of much assistance in defining the concept in concrete terms.” (People v. Dellinger (1989)
In Patterson, Justice Kennard explained the reasoning behind and the justification for the second degree felony-murder rule: “The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component [of conscious-disregard-for-life malice]. The justification therefor is that, when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved. The physical requirement, however, remains the same; by committing a felony inherently dangerous to life, the defendant has committed ‘an act, the natural consequences of which are dangerous to life’ ([People v.] Watson, supra,
The second degree felony-murder rule is venerable. It “has been a part of California’s criminal law for many decades. (See People v. Wright (1914)
But some former and current members of this court have questioned the rule’s validity because no statute specifically addresses it. Chief Justice Bird argued for its abolition in her concurring opinion in People v. Burroughs
In line with these concerns, defendant argues that the second degree felony-murder rule is invalid on separation of powers grounds. As he points out, we have repeatedly said that “ ‘the power to define crimes and fix penalties is vested exclusively in the legislative branch.’ (Keeler v. Superior Court[, supra,]
This court has never directly addressed these concerns and this argument, or explained the statutory basis of the second degree felony-murder rule. We do so now. We agree with Justice Panelli that there are no nonstatutory crimes in this state. Some statutory or regulatory provision must describe conduct as criminal in order for the courts to treat that conduct as criminal. (§ 6.)
Many provisions of the Penal Code were enacted using common law terms that must be interpreted in light of the common law. For example, section 484 defines theft as “feloniously” taking the property of another. The
Even conscious-disregard-for-life malice is nonstatutory in the limited sense that no California statute specifically uses those words. But that form of implied malice is firmly based on statute; it is an interpretation of section 188’s “abandoned and malignant heart” language. Similarly, the second degree felony-murder rule is nonstatutory in the sense that no statute specifically spells it out, but it is also statutory as another interpretation of the same “abandoned and malignant heart” language. We have said that the “felony-murder rule eliminates the need for proof of malice in connection with a charge of murder, thereby rendering irrelevant the presence or absence of actual malice, both with regard to first degree felony murder and second degree felony murder.” (Robertson, supra,
A historical review confirms this view. California’s first penal law was the Crimes and Punishments Act of 1850 (Act of 1850). (Stats. 1850, ch. 99, p. 229.) Section 19 of that act defined murder as “the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned.” (Stats. 1850, ch. 99, § 19, p. 231.) Sections 20 and 21 of the Act of 1850 defined express and implied malice, respectively. Section 21 stated, “Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and
Sections 22 to 25 of the Act of 1850 concerned voluntary and involuntary manslaughter. Section 25 provided, in its entirety, “Involuntary manslaughter shall consist in the killing of a human being, without any intent so to do; in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence in an unlawful manner; Provided, that where such involuntary killing shall happen in the commission of an unlawful act, which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offence shall be deemed and adjudged to be murder.'” (Stats. 1850, ch. 99, § 25, p. 231, italics of “Provided” in original, all other italics added.)
In 1872, the Legislature adopted the current Penal Code. Section 187 defined murder essentially the same as did the Act of 1850. (Keeler v. Superior Court, supra,
But the 1872 Penal Code did recast the definition of involuntary manslaughter. The new section 192 defined voluntary and involuntary manslaughter, as it still does today. (In the interim, vehicular manslaughter has been added as another form of manslaughter.) Subdivision 2 of that section defined and, now labeled subdivision (b), still defines, involuntary manslaughter as an unlawful killing without malice “in the commission of an unlawful act, not amounting to felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b), italics added.) The proviso portion of section 25 of the Act of 1850 was deleted and essentially replaced with the italicized language “not amounting to [a] felony.”
In Dillon, supra,
A codification of the felony-murder rule would logically be placed in the statutes defining murder, not in a statute defining involuntary manslaughter such as section 25 of the Act of 1850. Moreover, any reasonable felony-murder rule would apply to any killing during the course of a felony, not just an “involuntary killing” as stated in that same section 25. As Dillon noted, “It would have been absurd, of course, to punish as murder those killings [i.e., involuntary killings] but not ‘voluntary’ killings during a felony . . . .” (Dillon, supra,
Without the proviso, section 25 of the Act of 1850 would have meant, or at least would have been susceptible to the interpretation, that any killing “in the commission of an unlawful act”-—i.e., any unlawful act, whether misdemeanor or felony—is involuntary manslaughter. The proviso simply makes clear that involuntary manslaughter does not include killings in the course of a felony, which remain murder. As this court explained in a case in which the crime was committed before, but the opinion filed after, adoption of the 1872 Penal Code, “Whenever one, in doing an act with the design of committing a felony, takes the life of another, even accidentally, this is murder.” (People v. Doyell, supra,
We are unaware of any California case even remotely contemporaneous with the adoption of the 1872 Penal Code (i.e., any case before Dillon, supra,
For these reasons, we conclude that the Legislature’s replacement of the proviso language of section 25 of the Act of 1850 with the shorthand language “not amounting to felony” in section 192 did not imply an abrogation of the common law felony-murder rule. The “abandoned and malignant heart” language of both the original 1850 law and today’s section 188 contains within it the common law second degree felony-murder rule. The willingness to commit a felony inherently dangerous to life is a
B. The Merger Doctrine and Second Degree Felony Murder
Although today we reaffirm the constitutional validity of the longstanding second degree felony-murder rule, we also recognize that the rule has often been criticized and, indeed, described as disfavored. (E.g., Patterson, supra,
First, “[i]n People v. Ford (1964)
1. Historical Review
The merger doctrine arose in the seminal case of Ireland, supra,
We next confronted the merger doctrine in a second degree felony-murder case in Mattison, supra,
The Mattison defendant argued “that the offense of administering poison with the intent to injure is an ‘integral part of’ and ‘included in fact within the offense’ of murder by poison” within the meaning of Ireland, supra,
In People v. Smith (1984)
Our merger jurisprudence took a different turn in Hansen, supra, 9 Cal.4th 300. In that case, the defendant was convicted of second degree murder for shooting at a house, killing one person. The trial court instmcted the jury on second degree felony murder, with discharging a firearm at an inhabited dwelling house (§ 246) the underlying felony. The majority concluded that the crime of discharging a firearm at an inhabited dwelling house “does not ‘merge’ with a resulting homicide so as to preclude application of the felony-murder doctrine.” (Hansen, supra, at p. 304.) We noted that this court “has not extended the Ireland doctrine beyond the context of assault, even under circumstances in which the underlying felony plausibly could be characterized as ‘an integral part of’ and ‘included in fact within’ the resulting homicide.” (Id. at p. 312.)
We discussed in detail Mattison, supra, 4 Cal.3d 177, and People v. Taylor, supra,
But the Hansen majority also disagreed with People v. Taylor, supra,
Hansen went on to explain that “application of the second degree felony-murder rule would not result in the subversion of legislative intent. Most homicides do not result from violations of section 246, and thus, unlike the situation in People v. Ireland, supra,
Hansen generated three separate opinions in addition to the majority opinion. Justice Werdegar authored a concurring opinion arguing that the operative test for the merger doctrine is “whether the underlying felony was committed with a ‘collateral and independent felonious design.’ ” (Hansen, supra, 9 Cal.4th at p. 318.) She concurred in the judgment because “[t]he evidence in this case supports the conclusion defendant entertained a collateral and independent felonious design under Mattison and Taylor, namely to intimidate Behaves by firing shots into his house.” {Ibid.)
Justices Mosk and Kennard each authored separate concurring and dissenting opinions. They would have concluded that the underlying felony merged with the resulting homicide, thus precluding use of the felony-murder rule. Justice Kennard argued that “the prosecution’s evidence did not show that defendant had any independent felonious purpose for discharging the firearm at the Behaves residence. That conduct satisfies this court’s definition of an assault.” (Hansen, supra, 9 Cal.4th at p. 330.)
In Robertson, supra,
The Robertson majority reviewed some of the cases discussed above, then focused on Mattison, supra, 4 Cal.3d 177. We said that the Mattison court believed that finding no merger under its facts “was consistent with the deterrent purpose of the felony-murder rule, because we envisioned that application of the felony-murder rule would deter commission of the underlying inherently dangerous crime. (Id. at pp. 185-186.) Although a person who has decided to assault another would not be deterred by the felony-murder rule, we declared, a defendant with some collateral purpose may be deterred. The knowledge that a murder conviction may follow if an offense such as furnishing a controlled substance or tainted alcohol causes death 1 “should have some effect on the defendant’s readiness to do the furnishing.” ’ (Id. at p. 185.)” (Robertson, supra, 34 Cal.4th at pp. 170-171.)
We noted that Mattison, supra, 4 Cal.3d 177, focused on the fact that the underlying felony’s purpose “was independent of or collateral to an intent to cause injury that would result in death.” (Robertson, supra,
In Robertson, the Court of Appeal had said “that application of the merger doctrine was necessary in order to avoid the absurd consequence that ‘[defendants who admit an intent to kill, but claim to have acted with provocation or in honest but unreasonable self-defense, would likely have a stronger chance [than defendants who claimed “I didn’t mean to do it”] of being convicted of the lesser offense of voluntary manslaughter.’ ” (Robertson, supra, 34 Cal.4th at pp. 172-173.) We responded: “The asserted anomaly identified by the Court of Appeal is characteristic of the second degree felony-murder rule in general and is inherent in the doctrine’s premise that it is reasonable to impute malice—or, more precisely, to eliminate consideration of the presence or absence of actual malice—because of the defendant’s commission of an underlying felony that is inherently and foreseeably dangerous. [Citations.] Reliance on section 246.3 as the predicate offense presents no greater anomaly in this regard than such reliance on any other inherently dangerous felony.” (Id. at p. 173.)
Thus, the Robertson majority abandoned the rationale of Hansen, supra, 9 Cal.4th 300, and resurrected the collateral purpose rationale of Mattison, supra, 4 Cal.3d 177, at least when the underlying felony is a violation of section 246.3.
Robertson generated four separate opinions in addition to the majority opinion. Justice Moreno’s concurring opinion agreed that the refusal to apply the merger doctrine was correct under the current state of the law, but he was concerned whether the court should continue to adhere to the second degree felony-murder doctrine at all. (Robertson, supra, at pp. 174-177.) Justice Brown argued in dissent that the second degree felony-murder rule should be abandoned entirely. (Robertson, supra, 34 Cal.4th at pp. 186-192.)
In a separate dissent, Justice Kennard disagreed that “defendant’s claimed objective to scare the victim” was “a felonious purpose that was independent of the killing.” (Robertson, supra,
Justice Werdegar also dissented, arguing that the underlying felony merged with the resulting homicide. She said she “would like to join in the majority reasoning, which is consistent with my Hansen concurrence. But sometimes consistency must yield to a better understanding of the developing law. The anomalies created when assaultive conduct is used as the predicate for a second degree felony-murder theory (see dis. opn. of Kennard, J., ante, at pp. 180-182) are too stark and potentially too productive of injustice to be written off as ‘characteristic of the second degree felony-murder rule in general’ (maj. opn., ante, at p. 173). It simply cannot be the law that a defendant who shot the victim with the intent to kill or injure, but can show he or she acted in unreasonable self-defense, may be convicted of only voluntary manslaughter, whereas a defendant who shot only to scare the victim is precluded from raising that partial defense and is strictly liable as a murderer. The independent and collateral purposes referred to in Mattison must be understood as limited to nonassaultive conduct. In circumstances like the present, the merger doctrine should preclude presentation of a second degree felony-murder theory to the jury.” (Robertson, supra,
In Randle, supra,
The most recent significant development is the Court of Appeal’s opinion in this case. The majority noted that People v. Tabios, supra, 61 Cal.App.4th 1, had relied on Hansen, supra,
Regarding whether a collateral purpose exists in this case, the Court of Appeal majority noted that it had held defendant’s statement that he had fired the gun “ ‘to scare them’ ” should have been excluded. “Without defendant’s statements about firing the gun,” the majority concluded, “there was no admissible evidence of a collateral purpose by defendant or any of his companions. Indeed, the reasonable inference is that one who shoots another at close range intends to harm, if not to kill.” Thus it found the court erred, prejudicially, in instructing on second degree felony murder.
In dissent, Justice Nicholson agreed with the majority that the present state of the law is muddled. But he concluded that this court has not overruled Hansen, supra, 9 Cal.4th 300, and found that case, rather than Robertson, supra,
2. Analysis
The current state of the law regarding the Ireland merger doctrine is problematic in at least two respects.
First, two different approaches currently exist in determining whether a felony merges. Hansen, supra,
Second, Randle, when juxtaposed with Robertson, brings into sharp focus the anomaly that we noted in Robertson and accepted as inherent in the second degree felony-murder rule, and that we noted in Hansen and avoided by concluding that the merger doctrine never applies to shooting at an inhabited dwelling house. In combination, Robertson and Randle hold that, when the Hansen test does not apply (i.e., at least when the underlying felony is a violation of § 246.3), the underlying felony merges, and the felony-murder rule does not apply, if the defendant intended to shoot at the victim (Randle), but the underlying felony does not merge, and the felony-murder rule does apply, if the defendant merely intended to frighten, perhaps because he believed the victim was burglarizing his car (Robertson). This result is questionable for the reasons discussed in the separate opinions in Robertson. Moreover, as we discuss further below, the Robertson and Randle approach injected a factual component into the merger question that did not previously exist.
We first consider whether Hansen, supra, 9 Cal.4th 300, has any continuing vitality after Robertson, supra,
But if, as we conclude, the Hansen test does not apply to a violation of section 246.3, we must decide whether it still applies to any underlying felonies. The tests stated in Hansen and in Robertson and Randle cannot both apply at the same time. If Hansen governs, the underlying felony will never merge. If Robertson and Randle govern, the underlying felony will always merge unless the court can discern some independent felonious purpose. But we see no principled basis by which to hold that a violation of section 246 never merges, but a violation of section 246.3 does merge unless done with an independent purpose. We also see no principled test that another court could use to determine which approach applies to other possible underlying felonies. The court in People v. Bejarano, supra,
But the test of Robertson, supra,
The Robertson and Randle test presents yet another problem. In the past, we have treated the merger doctrine as a legal question with little or no factual content. Generally, we have held that an underlying felony either never or always merges (e.g., People v. Smith, supra,
Defendant argues that the factual question whether the defendant had a collateral felonious purpose—and thus whether the felony-murder rule applies—involves an element of the crime and, accordingly, that the jury must decide that factual question. When the merger issue turns on potentially disputed factual questions, there is no obvious answer to this argument. Justice Kennard alluded to the problem in her dissent in Robertson when she observed that “the jury never decided whether he had that intent [to frighten].” (Robertson, supra,
To avoid the anomaly of putting a person who merely intends to frighten the victim in a worse legal position than the person who actually intended to shoot at the victim, and the difficult question of whether and how the jury should decide questions of merger, we need to reconsider our holdings in Robertson, supra,
This conclusion is also consistent with our repeatedly stated view that the felony-murder rule should not be extended beyond its required application. (People v. Howard, supra,
C. Prejudice
California Constitution, article VI, section 13, prohibits a reviewing court from setting aside a judgment due to trial court error unless it finds the error prejudicial. Accordingly, we must decide whether the error in instructing on felony murder prejudiced defendant.
Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Cross (2008)
In finding prejudice, the Court of Appeal noted that the trial court “did not give CALJIC No. 8.30 on second degree express malice murder or CALJIC No. 8.31 on second degree implied malice murder.” It also stated, “While it is possible the jury selected second degree murder on another theory after finding no premeditation and deliberation, we cannot determine which theory the jury relied on, so if the second degree felony-murder instruction was legally flawed, the verdict must be reversed. (People v. Guiton (1993)
Specifically, the court instructed the jury that to prove murder, the prosecution had to prove an unlawful killing that “was done with malice aforethought or occurred during the commission or attempted commission of shooting at an occupied motor vehicle . . . .” (Italics added.) It also defined malice: “Malice may be either express or implied. Malice is express when there is manifested an intention unlawfully to kill a human being.
“Malice is implied when:
“1. The killing resulted from an intentional act;
“2. The natural consequences of the act are dangerous to human life; and
“3. The act was deliberately performed with knowledge of the danger to and with conscious disregard for human life.
“When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.”
As the Attorney General notes, the only language from CALJIC No. 8.30 or No. 8.31 not included in CALJIC No. 8.11, which the court gave, is the last sentence of CALJIC No. 8.31: “When the killing is the direct result of such an act [an act committed with implied malice], it is not necessary to prove that the defendant intended that the act would result in the death of a human being.” But omission of this sentence, favorable to the prosecution, could neither have prejudiced defendant nor prevented the jury from finding implied malice.
Later, the court instructed the jury that a killing during the commission of shooting at an occupied motor vehicle is second degree murder “when the perpetrator had the specific intent to commit that crime.” The trial court did not reiterate at this point the conscious-disregard-for-life theory of second degree murder, but doing so was not necessary to adequately instruct the jury on that theory. The instructions permitted the jury to base a second degree
Moreover, the prosecutor explained the applicable law to the jury. He explained that murder was an unlawful killing committed with malice or during the commission of a dangerous felony. He discussed what implied malice is and included examples. Defendant correctly notes that the prosecutor did not argue that defendant acted with implied malice. He argued for first degree, not second degree, murder. But the instructions, especially in light of the prosecutor’s explanation, permitted the jury to base a second degree murder verdict on a finding of malice separate from the felony-murder rule.
In this situation, to find the error harmless, a reviewing court must conclude, beyond a reasonable doubt, that the jury based its verdict on a legally valid theory, i.e., either express or conscious-disregard-for-life malice. Citing People v. Guiton, supra,
The Attorney General argues that the actual verdict does show that the jury did not base its murder verdict on the felony-murder rule but necessarily based it on a valid theory. He notes that the jury acquitted defendant of the separately charged underlying crime of shooting at an occupied vehicle. A jury that based a murder verdict solely on felony murder, the Attorney General argues, would not acquit a defendant of the underlying felony. Defendant counters with the argument that the verdict as a whole—finding defendant guilty of murder but not guilty of either shooting at or from a motor vehicle—is internally inconsistent. On these facts, it is hard to reconcile this verdict. If defendant did not commit this murder by firing at or from a vehicle, how did he commit it? There was no evidence the victims
Defendant recognizes that he may not argue that the murder conviction must be reversed due to this inconsistency. He may not argue that the acquittals imply that defendant could not have committed murder, and therefore the jury found he did not commit murder. Instead, courts necessarily tolerate, and give effect to all parts of, inconsistent verdicts. (See generally People v. Palmer (2001)
Defendant’s argument has some force. The acquittal of the underlying felony strongly suggests the jury based its murder conviction on a valid theory of malice but, under the circumstances, we do not believe that it alone does so beyond a reasonable doubt. But for other reasons we find the error harmless. In his concurring opinion in California v. Roy (1996)
California v. Roy, supra,
For felony murder, the court’s instructions required the jury to find that defendant had the specific intent to commit the underlying felony of shooting at an occupied vehicle. Later, it instructed that to find defendant committed that crime, the jury had to find these elements:
“l.A person discharged a firearm at an occupied motor vehicle; and
“2. The discharge of the firearm was willful and malicious.”
Thus any juror who relied on the felony-murder rule necessarily found that defendant willfully shot at an occupied vehicle. The undisputed evidence showed that the vehicle shot at was occupied by not one but three persons. The three were hit by multiple gunshots fired at close range from three different firearms. No juror could have found that defendant participated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life—which is a valid theory of malice. In other words, on this evidence, no juror could find felony murder without also finding conscious-disregard-for-life malice. The error in instmcting the jury on felony murder was, by itself, harmless beyond a reasonable doubt.
However, this instructional error is not the only error in the case. The Court of Appeal held that the jury should not have heard evidence that defendant admitted firing the gun, but said he did not point it at anyone and just wanted to scare them, and that this error was harmless “as a pure evidentiary matter.” Neither of these holdings is before us on review. The Court of Appeal also held that the error in instructing on felony murder was, by itself, prejudicial, a holding we are reversing. But the Court of Appeal never considered whether the two errors, in combination, were prejudicial. The parties have, understandably, not focused on this precise question. Under the circumstances, we think it prudent to remand the matter for the Court of Appeal to consider and decide whether the two errors, in combination, were prejudicial.
Ill, Conclusion
Although we agree with the Court of Appeal that the trial court erred in instructing the jury on second degree felony murder, we also conclude that
George, C. J., Kennard, J., Werdegar, J., and Corrigan, J., concurred.
Notes
All further statutory citations are to the Penal Code unless otherwise indicated.
For ease of discussion, we will sometimes refer to this form of malice by the shorthand term, “conscious-disregard-for-life malice.” Patterson, supra,
As relevant today, section 6 provides: “No act or omission ... is criminal or punishable, except as prescribed or authorized by this Code, or by some of the statutes which it specifies as continuing in force and as not affected by its provisions, or by some ordinance, municipal, county, or township regulation, passed or adopted, under such statutes and in force when this Code takes effect.”
For policy reasons, Justice Moreno would abolish the second degree felony-murder doctrine entirely. As we have explained, this court has long refused to abolish it because it is so firmly established in our law. We continue to abide by this long-established doctrine, especially now that we have shown that it is based on statute, while at the same time attempting to make it more workable.
In its entirety, section 246 provides: “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year.
“As used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”
Ireland, supra,
Justice Baxter makes some provocative arguments in favor of abolishing the Ireland merger doctrine entirely. However, just as we have refused to abolish the second degree felony-murder doctrine because it is firmly established, so too we think it a bit late to abolish the four-decades-old merger doctrine. Instead, we think it best to attempt to make it and the second degree felony-murder doctrine more workable.
When we say the trial court erred, we mean, of course, only in light of our reconsideration of past precedents. As of the time of trial, after Hansen, supra,
Concurrence Opinion
I concur in the majority’s decision to reaffirm the constitutional validity of the long-standing second degree felony-murder rule. (Maj. opn., ante, at pp. 1187-1188.) Ever since the Penal Code
Although the majority reaffirms the constitutional validity of the second degree felony-murder rule, it goes on to render the rule useless in this and future cases out of strict adherence to the so-called “merger doctrine” announced in People v. Ireland (1969)
In People v. Hansen (1994)
I signed the majority opinion in Hansen, and continue to find that decision well reasoned and most directly on point in the matter now before us.
In People v. Robertson (2004)
I signed the majority opinion in Robertson as well, but I have since come to appreciate that the collateral purpose rule on which it relied is unduly deferential to Ireland’s flawed merger doctrine. The majority itself points to several serious concerns raised in the wake of Robertson’s reliance on the collateral purpose rule in its effort to mitigate the harsh effects of Ireland’s all-or-nothing merger doctrine. (Maj. opn., ante, at pp. 1199-1200.) Nonetheless, it can fairly be observed that the decision in Robertson, right or wrong, did represent a compromise, for under its holding inherently dangerous felonies, though they be of the assaultive type, could still be used as a basis for second degree felony-murder rule treatment as long as a “collateral purpose” for the commission of such a felony could be demonstrated. (Robertson, supra,
The majority, in contrast, rejects the analysis and holding of Robertson and expressly overrules it along with our earlier decision in Hansen. (Maj. opn., ante, at p. 1200.) The majority, to put it bluntly, is unwilling to ameliorate the harsh effects of Ireland’s merger doctrine. The majority instead broadly holds that all felonies that are “assaultive in nature” (ibid.) henceforth may not
In the end, this case presented us with a clear opportunity to finally get this complex and difficult issue right. The majority’s recognition and unequivocal pronouncement, in part II.A. of its opinion—that the second degree felony-murder rule is simply a rule for imputing malice under section 188— furnishes the missing piece to this complex and confusing legal jigsaw puzzle. With that clear pronouncement of the second degree felony-murder rule’s true nature and function firmly in hand, I would go on to reach the following logical conclusions with regard to the long-standing tension between that rule and Ireland’s merger doctrine.
First, when a homicide has occurred during the perpetration of a felony inherently dangerous to human life, a jury’s finding that the perpetrator satisfied all the elements necessary for conviction of that offense, without legal justification or defense, is a finding that he or she acted with an “abandoned and malignant heart” (i.e., acted with malice) within the meaning of section 188. Put in terms of the modem definition of implied malice, where one commits a felony inherently dangerous to human life without legal justification or defense, then under operation of the second degree felony-murder rule, a homicide resulting therefrom is a killing “ ‘ “proximately resulting] from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” ’ ” (Dellinger, supra,
Once it is understood and accepted that the second degree felony-murder rale is simply a rule for imputing malice from the circumstances attending the commission of an inherently dangerous felony during which a homicide occurs, no grounds remain to support the sole rationale offered by the Ireland court for the merger doctrine—that use of an assaultive-type felony as the basis for a second degree felony-murder instruction “effectively precluded] the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault.” (Ireland, supra,
Second, when a jury convicts of second degree murder under the second degree felony-murder rule, it has found the statutory element of malice necessary for conviction of murder. (§§ 187, 188.) Hence, there are no constitutional concerns with regard to whether the jury is finding all the elements of the charged murder, or is not finding all the “facts” that can increase punishment where the defendant is convicted of second degree murder in addition to being convicted of the underlying inherently dangerous felony. (See Apprendi v. New Jersey (2000)
Third, our recognition today that the second degree felony-murder rule is simply a rule under which the jury may impute malice from the defendant’s commission of inherently dangerous criminal acts, thereby undercutting the very rationale given by the Ireland court for the merger doctrine, should logically eliminate any impediment to the use of inherently dangerous felonies—such as the violation of section 246 (maliciously and willfully shooting at an occupied vehicle) at issue in this case—as the basis for an instruction on second degree felony murder.
The majority’s holding, in contrast, works just the opposite result. Prior to this court’s decision in Ireland, this court had already restricted the felonies that could support a second degree felony-murder conviction to those “inherently dangerous to human life.” (People v. Ford (1964)
In concluding that Ireland’s merger doctrine trumps the second degree felony-murder rule in this and all future cases involving “assaultive-type” felonies (maj. opn., ante, at p. 1178), the majority professes to heed the concerns raised by some members of this court in past decisions that have addressed the tension between the second degree felony-murder rule and the merger doctrine. {Id. at pp. 1194-1195.) I do not believe those concerns justify the result reached by the majority in this case.
For example, in Robertson, supra,
As the majority observes, Justice Werdegar dissented in Robertson, arguing that the underlying felony merged with the resulting homicide. She wrote: “The anomalies created when assaultive conduct is used as the predicate for a second degree felony-murder theory [citation] are too stark and potentially too productive of injustice to be written off as ‘characteristic of the second degree felony-murder rule in general’ ([Robertson, supra, 34 Cal.4th] at p. 173). It simply cannot be the law that a defendant who shot the victim with the intent to kill or injure, but can show he or she acted in unreasonable self-defense, may be convicted of only voluntary manslaughter, whereas a defendant who shot only to scare the victim is precluded from raising that partial defense and is strictly liable as a murderer. The independent and
I appreciate and share the concerns voiced by Justice Werdegar in her dissent in Robertson. At the threshold, I fail to see why a bald claim by the defendant that he fired his gun “upwards into the air” intending merely to “ ‘scare people away’ ” (Robertson, supra,
The particular facts of Robertson aside, I agree with Justice Werdegar that the defendants are entitled to present all viable defenses supported by substantial evidence, like imperfect self-defense, in a second degree murder prosecution, whether it be tried on a theory of straight implied malice second degree murder or under the second degree felony-murder rule. But as we recognize today, the second degree felony-murder rule is simply a common law rule for imputing malice, a required element of murder under sections 187 and 188. Understood in that way, there is nothing in the rule, or in relevant murder statutes, to prevent a defendant from establishing that, even where the circumstances show he satisfied all the elements of an alleged inherently dangerous felony during which a homicide occurred, his actual state of mind nonetheless precludes drawing an inference of malice from those attending circumstances.
Under the modem construction of the statutory definition of implied malice (§ 188), “malice is presumed when ‘ “the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” ’ ” (Dellinger, supra, 49 Cal.3d at p. 1218, italics added; see also People v. Sedeno, supra,
One might reasonably speculate that if the Ireland court had had the benefit of our modem jurisprudence on second degree implied malice murder, including decisions like Christian S., supra,
In conclusion, I concur in the majority’s holding that the second degree felony-murder mle is a mle for imputing malice, and as such, withstands constitutional scrutiny. (Maj. opn., part HA., ante, at pp. 1180-1188.) I respectfully dissent from the analysis and conclusions reached by the majority with regard to Ireland’s merger doctrine. (Maj. opn., part H.B., ante, at pp. 1188-1201.) I would follow the well-reasoned decision in Hansen, supra, 9 Cal.4th 300, and conclude that the jury below was properly instructed on second degree felony murder based on defendant’s commission of the inherently dangerous felony of shooting at an occupied vehicle in violation of section 246.
All further statutory references are to the Penal Code.
Section 188 provides that malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.) We have, however, recognized that “[t]he statutory definition of implied malice has never proved of much assistance in defining the concept in concrete terms.” (People v. Dellinger (1989)
The case before us involves a homicide resulting from defendant shooting at an occupied vehicle in violation of section 246. In Hansen, we held that shooting at an “inhabited dwelling house” in violation of that same section (§ 246) is an act inherently dangerous to human life even though the house is not actually occupied at the time of the shooting. (Hansen, supra, 9 Cal.4th at pp. 309-311.) We then explained that “[t]he nature of the other acts proscribed by section 246 reinforces the conclusion that the Legislature viewed the offense of discharging a firearm at an inhabited dwelling as posing a risk of death comparable to that involved in shooting at an occupied building or motor vehicle.” (Id. at p. 310.) The majority agrees that shooting at an occupied vehicle, as occurred here, is an inherently dangerous felony. (Maj. opn., ante, at p. 1188.) So do I.
Concurrence Opinion
The second degree felony-murder mle is deeply flawed. The majority attempts once more to patch this judicially created mle and improves the state of the law considerably, but several years ago I expressed my willingness to “reassess[] the rule in an appropriate case.” (People v. Robertson (2004)
“The felony-murder mle has been roundly criticized both by commentators and this court. As one commentator put it, ‘[t]he felony murder mle has an extensive history of thoughtful condemnation.’ [Citation.]” (People v. Robertson, supra,
My concerns about the felony-murder rule are neither new nor original. Nearly 45 years ago, this court acknowledged that “[t]he felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. [Citations.] Although it is the law in this state [citation], it should not be extended beyond any rational function that it is designed to serve.” (People v. Washington (1965)
The second degree felony-murder doctrine suffers from all the same infirmities as its first degree counterpart, and more. In People v. Satchell (1971)
The majority acknowledges the criticism heaped on the second degree felony-murder rule and describes this court’s halting and sometimes inconsistent attempts to circumscribe the scope of the rule, most notably by creating the Ireland merger doctrine (People v. Ireland
The lack of necessity for the second degree felony-murder rule is demonstrated by the majority’s conclusion that the error in instructing the jury on second degree felony murder in this case was harmless because no reasonable juror could have found that defendant participated in this shooting without also concluding that he harbored at least implied malice. I agree. This will be the rule, rather than the exception. In most instances, a juror who finds that the defendant killed the victim while committing a felony that is inherently dangerous to human life necessarily also will conclude that the defendant harbored either express or implied malice and thus committed second degree murder without relying upon the second degree felony-murder rule. Only in those rare cases in which it is not clear that the defendant acted in conscious disregard of fife will the second degree felony-murder rule make a difference,
Appellant’s petition for a rehearing was denied April 29, 2009.