*1 Dec. 1970.] 22730. In Bank. No. [S.F. Petitioner, TAYLOR,
ALVIN COUNTY, Respondent; OF ALAMEDA COURT SUPERIOR THE PEOPLE, Interest. Real Party THE
Counsel Defender, Nunes, Kessel, John D. Public and Gordon Van Assistant Public Defender, for Petitioner. L. Curiae
Robert as Amicus on behalf of Petitioner. Boags General, Smith, C. Arlo E. Thomas Chief Assistant Attor- Lynch, Attorney General, Harris, General, Jr., Albert W. Assistant Deraid ney E. Attorney Cuneo, General, and James B. Attorneys Respondent Granberg Deputy and for Real in Interest. Party
Opinion BURKE, J.Petitioner and his Daniels codefendant were infor charged Smith, mation with the murder of John H. assault with a robbery, deadly West, Linda with a against assault Jack deadly against weapon weapon court denied aside the West. motion to set infor superior petitioner’s Code, alter 995), issued an (Pen. as to the count we mation § native writ of prohibition. were adduced regarding facts the following hearing,
At preliminary men two attempted January On count: the evening the murder and her Mrs. Linda Lee West Store which was operated Jax to rob Liquor the store first entered that James Daniels Jack. Mrs. West testified husband counter, West, ciga- behind the package asked Mr. who was John entered Smith cigarettes, Mr. rettes. While West getting West, at the was on ladder Mrs. who store and the counter. approached store, husband then heard her say something the two men entered time counter, re- she heard Daniels her attention to the about money. Turning her “Put and observed husband bag,” peatedly saying, money with order. complying *4 Mr. West was in the
While from money register bag, putting Daniels the fact he and Smith were armed. Ac- referred to repeatedly West, time, cording to Mrs. Daniels “chattered this insanely” telling during Mr. West “Put bag. Put the in the Put the money money bag. in the bag. Don’t move I’ll blow head money or off. He’s a your got gun. a He’s Don’t move or we’ll have an execution here. Get down got gun. right stomach, on the floor. I said on on your your stomach.” this Throughout Smith’s was at period, pointed Mr. West. Mrs. West testified that looked
Smith “intent” and as if “waiting something “apprehensive” big She indicated that Smith’s happen.” and ner- apparent apprehension vousness was manifested way he was at Mr. West. staring
While Daniels was floor, Mr. West to the Mrs. drew a forcing West pistol from under her and Smith, fired at who clothing was closest to standing her. Smith was struck on the side of right the chest. Mrs. fired West four more succession, shots in rapid observed Smith’s coming from “sparks” gun, was which in her direction. A bullet hole was dis- subsequently covered in the wall behind the Mrs. West had been place standing, approxi- mately eight or nine feet above the floor. this Mr. West had During period, seized a and fired pistol two shots Smith. Mrs. West’s last shot fired was at Daniels as he was out going He door. “lurched and almost violently down, went picked [but] himself up Smith died kept going.” as result of multiple gunshot wounds.
The evidence examination indicated preliminary petitioner outside waiting store in a liquor car. He was getaway later apprehended and connected with the crime bills in through his possession and through the automobile which was seen aby witness the scene of the leaving robbery.
Under 995, Code Penal section an information must be set aside if the
582 cause.” has been committed without “reasonable probable defendant with the test course, test identical cause is not Of probable be convinced to a in a murder case. must a jury jury which controls of the crime doubt of the existence a reasonable certainty moral beyond But essential element of crime. and of every information charged be convinced of examination must a magistrate conducting preliminary caution lead a or pru such state of facts as would man of ordinary believe, entertain a strong dence to -conscientiously suspicion Court, 471, (Rideout Superior the accused. v. 67 Cal.2d guilt [62 Court, 581, 521, 197]; Jackson v. Superior 432 P.2d Cal.Rptr. Court, 374]; 838, Superior P.2d 525-526 Roads Cal.Rptr. [42 169]; Stansbury, 263 Cal.Rptr. [80 827].) words, will other “Evidence that App.2d . need not be sufficient to a conviction. . . An justify prosecution will not be there information set aside or thereon if prosecution prohibited rational been is some that an offense has ground assuming possibility v. Superior and the accused is of it. guilty [Citations.]” {Rideout Court, supra, 474.) at p. with the crime murder. The information herein charged petitioner
“
with malice afore
‘Murder
the unlawful
human
being,
Code,
(Pen.
common-law-felony-
when
thought.’
Except
§
*5
an
to
doctrine is
essential
murder is
intent
an
element of
applicable,
acts
to
an intent with
life to commit
disregard
likely
kill or
conscious
for
442,
(People
777,
v.
Cal.2d
Washington,
kill.”
780 [44
130].)
cannot
Petitioner
contends that he
be con
P.2d
correctly
doctrine,
victed under the
is
com
since
not
killing
“When
felony-murder
victim,
a robber
his
malice afore
mitted
or
his
but
by
accomplice
by
robber,
not
is
attributable to the
for the
is not committed by
thought
killing
(People
in the
v.
him
or
to
Wash
perpetration
attempt
robbery.”
perpetrate
However,
doctrine,
ington, supra,
from the
p.
apart
felony-murder
could
found
of murder on a
of vicarious liability.
guilty
theory
petitioner
Gilbert,
690,
stated
As
in
Cal.2d
704-705 [47
909,
P.2d
(revd.
on other
Petitioner relies language following upon who, defendant’s victim at the merely robbery accomplice pointed without further there shot and killed him: “In robbery provocation, every is a that the will has little con- victim resist and kill. The robber possibility over such a trol case demon- once is undertaken as this killing To strates. an additional discriminate impose would penalty robbers, conduct, between not on basis in their own any difference but solely basis of the others that the robber’s conduct response by 781; induce.” Cal.2d at added.) italics happened As indicated the italicized words quotation, foregoing central inquiry criminal determining liability
a resisting victim or officer is whether the conduct a defendant police his accomplices was sufficiently lethal resistance to provocative a finding of If malice. fact trier of concludes under the particular circumstances the instant case Smith’s death re proximately sulted from acts of petitioner’s done with conscious accomplices disregard life, for human the natural life, of which were consequences dangerous then be convicted of first petitioner may murder.2
For we out in example, that “Defendants who ini- *6 tiate battles gun also found may murder if their victims resist guilty and kill. Under circumstances, such defendant, base, ‘the antisocial and motive with life, wanton for human disregard does an act that involves defining 1 “Under the rules principals and conspiracies, may criminal defendant the guilty attributable the act accomplice. to of his To be so however, guilty, the accomplice must cause being by the death human of another an act committed in furtherance design. (People of the common v. [Citations.]” Gilbert, supra, 690, 705.) 63 Cal.2d dispute does Petitioner not the that conduct of his confederates set forth above was in robbery. furtherance of the People proposed Phillips, 2 See instruction v. 586-587 [51 353], Rptr. pursuant 414 P.2d When murder has been established the fore going principles, degree. section be invoked its may Penal Code 189 to determine Gilbert, (People supra, 705.) v. p. 63 Cal.2d at [citation], it is and that it will result in death’ high probability (62 doctrine.” malice unnecessary imply felony-murder invoking Gilbert, 782; 704-705.) People supra, Cal.2d at see 63 Cal.2d at p. pp. nor fired the first Petitioner contends that since neither Daniels Smith shot, did death. How- not “initiate” the battle which led to Smith’s they gun ever, circumstances, battle can be initiated acts upon depending gun Reed, Thus, short of the first shot. provocation falling firing den.), defendant resisted Cal.App.2d Cal.Rptr. (hg. [75 430] hands,” officers’commands to his toward the and your “put up and toward officers victim. The officers commenced kidnap-robbery defendant and defendant firing, the victim. did wounding Although shot, not fire a his murder conviction was on the single theory upheld malice, actions” were “aggressive sufficient evidence of these circumstances it be said that defendant initiated the may “[u]nder (270 . . . .” gunplay 45-46.) Cal.App.2d pp. Court, in Brooks v. Superior
Similarly, Cal.App.2d den.), had directed petitioner 762] ar- (hg. “opprobrious language” officer and had officer, resting officer’s The grasped shotgun. being startled and him, thinking was to disarm back- petitioner trying yanked wards and fired the gun, a fellow officer. In mortally wounding upholding murder, an indictment for circumstances, the court concluded that under the act of petitioner’s for and reaching officer’s shotgun grasping with “fraught grave life,” inherent to human danger therefore suffi- cient to raise an inference of malice.
In the instant evidence at the set forth prehminary hearing above discloses acts of of Daniels and Smith from provocation part malice, which the trier facts could infer Daniels’ coercive con including “execution,” duct toward Mr. and his threats of West and Smith’s repeated and nervous as he held Mr. West at intent fore apprehension gunpoint. conduct was of lethal resistance to lead a man going sufficiently provocative caution to conclude that Daniels and “ini ordinary Smith prudence battle, tiated” the or that such conduct was done with conscious dis for human life and with natural to life.3 regard Ac- consequences dangerous ignore conduct, regarding 3 Petitioner contends that we should evidence Smith’s theory on responsible that Smith could not have been held for his own death. rejected stating We a similar contention in that “A distinction based on killed, however, person make liability would the defendant’s criminal upon turn markmanship policemen. of victims and reasonably A rule of law cannot be based on such a fortuitous circumstance. The basic issue therefore is whether a robber can *7 any be convicted of murder for the person by resisting another who is the 780, robbery.” added.) Therefore, Cal.2d at italics may the trier of fact find motion, through that Smith set into constituting the intentional commission of acts implied malice and in robbery, furtherance of the resulting battle in his own
585 finding that the evidence magistrate’s we conclude supported cordingly, with first and cause to charge petitioner that reasonable existed probable murder. and is discharged writ heretofore issued peremptory The alternative writ is denied. McComb, J., Sullivan, J., J., concurred. C. and
Wright, PETERS, J.I dissent. Smith, John H. that can be convicted of murder of holding petitioner People Washington, this in v. court’s majority repudiate holdings 777, v. 442, 130], People
Cal.2d 779-783 402 P.2d Cal.Rptr. [44 Gilbert, 690, 909, 365], 703-705 P.2d Cal.Rptr. [47 robbers cannot be convicted of a victim unless killing by acts, the robbers commit malicious in to the acts addition constituting which felony, demonstrate of other underlying beyond culpability robbers. The facts of Gilbert and its majority ignore conveniently entire discussion malice. concerning They distinguish purport from the instant in absurd distinction that resulting who robbers guns their victims without the obvious point articulating threat inherent such action cannot convicted of murder for a killing victims, whereas robbers who at their victims point guns and articulate their threat can be convicted of murder in the same sitúa- hold, tion. To as do the can be convicted majority, petitioner murder for acts which constitute a first because the solely degree robbery victims killed one of the robbers is effect to reinstate felony-murder rule in cases where the victim resists kills.
In Washington, owner, two robbers held a service station. The Car- up penter, was while office,totaling disbursements up receipts an employee in a vault in an money room. depositing adjoining Upon hearing someone yell “robbery,” his desk and opened Carpenter robbers, took out Ball, a revolver. A few moments later one of the entered the office and a revolver at fired immedi- Carpenter. Carpenter ately, mortally Ball. wounding was con- accomplice, petitioner any may vicariously death. Since responsible be held legally may charged attributable his accomplices, he with Smith’s death. People Ferlin, 587, 230], The cases of Superior v. P. [265 Woodruff Court, 291], Jennings, 750-751 [47 243 Cal.App.2d Cal.Rptr. 329], 328-329 apposite they simply are not accomplice held that an dentally charged cannot be with murder when his confederate acci- committing felony. kills himself while The courts in those cases were not faced involving with a situation provoking intentional commission of acts lethal resistance police victims or officers. *8 586 We held
victed of of Ball. the murder conviction. the murder We reversed that doctrine not be invoked to convict Washing- the could felony-murder or of ton murder because the was not committed by Washington killing a or his his “When a is not committed robber by accomplice: killing by victim, but is not attributable malice accomplice by aforethought robber, for the not him in the the committed killing by perpetration (62 at Cal.2d attempt perpetrate robbery.” p. that, rule, further a defendant
We stated from the felony-murder apart be of murder on a for a com may guilty vicarious liability theory killing mitted also be by may victim: “Defendants who initiate battles gun found of murder if their victims resist and kill. Under such circum guilty stances, base, ‘the defendant for a antisocial motive and with wanton dis life, for human regard does an act that involves of high degree probability Thomas, that it will 470, result in death’ v. 41 480 . . (People Cal.2d . and it is [concurring malice opinion]), by invoking unnecessary imply the felony-murder doctrine. To doctrine to invoke felony-murder imply malice in such a case is of crimi overlooks the unnecessary principles nal that should liability of one for a killing govern responsibility person committed 782; (Id., another.” at omitted.) fn. p. Washington directly gun decedent-accomplice that a defendant in such a situation If court was
victim. this opinion committed could be convicted of murder for properly victim, and would have held that could it would have so stated Washington Instead, be it held could not so convicted of murder. that'Washington and mentioned one case where defendants could convicted murder victim:, be convicted of murder properly Therefore, Washing- battle. the case where defendants initiate gun victim, the act at the ton stands for the gun pointing proposition “ battle, is hot an act done ‘with wanton unlike the act of initiating “ ” life,’ human ‘a disregard involving high probability ” (See id.)1 from which malice can it will result death’ implied. Thomas, 470, supra, People (concurring 480 significant 1 It is v. enunciating opinion)—cited “implied as a case malice” doctrine 782)—and People enunciating (e.g., cases this doctrine v. Cal.2d the other Torres, 146, Doyell, 85, 95; People Cal.App.2d 48 v. 94 149-150 P.2d [210 , 324 Semone, 379]; Hubbard, 318, People ]; Cal.App. P.2d v. 64 Cal. v. [35 Stein, 271]; 315]; People App. Cal.App. 37-38 P. P. [137 Negligent Collings, Murder—Some Stateside Footnotes to Director Public see 254, 281-285, cited) (1961) 49 and cases involved Prosecutions v. Smith Cal.L.Rev. recklessly disregard defendants who and with conscious of human life had fired deadly weapon directly group or struck or a which the a blow with a at the victim victim was a member. Harrison, Moreover, People 330 [1 414]—cited
587 murder of be as to when a defendant Washington may guilty The rule Gilbert, v. People in followed a victim was by for committed killing to rob used guns and Weaver supra, 63 Cal.2d In that Gilbert 690. a Gilbert shot and killed bank, police car. a drove getaway King and killed shot Weaver was man as he and were the bank. Weaver leaving of and Gilbert were convicted another as fled. by they policeman King and Weaver. We reversed first murder of both the degree policeman Weaver, been on felony- of which had convictions of murder predicated be found doctrine, stated the defendants might murder but that on retrial shooting a response of Weaver was killed guilty murder Weaver if 777, “In 62 Cal.2d 781-782 by People initiated Gilbert: v. 442, 130], that since the P.2d we held [44 Cal.Rptr. purpose negligently common-law rule is to deter felons from felony-murder killing com or they them accidentally by holding strictly killings responsible mit, malice under that unless felon cannot be rule aforethought imputed however, commits from the We that killing. recognized, entirely apart rule, initiates felony-murder malice be when a defendant established may battle, that under such he be convicted of circumstances may murder killing by another. the evidence Although case present would on the conviction first ground that Weaver was killed in to a initiated Gil shooting response bert, the court did not instruct the an on but erro jury ground, gave neous instruction that defendants could be convicted of murder for that killing without of malice and com proof solely ground they mitted a that was the cause of their death. proximate accomplice’s This instruction withdrew from the the crucial issue of whether the jury was in shooting Weaver to the of Davis response shooting solely - (Id., prevent 703-704.) robbery.” pp.
Thus we recognized that found King might of murder of Wea guilty ver, but because there was evidéncé that Weaver was killed in response to a shootout initiated Gilbert. We then set forth the principles criminal which had to responsibility be satisfied on retrial for to be King convicted of murder for the “(1) of Weaver: Proof of malice aforethought. . (2) . . must attributable to act of the defendant or his (3) . . . accomplice. Vicarious criminal . . .” liability. (Id., 704-705; deleted.) italics pp. We discussed the first principle— “ of malice proof aforethought—as ‘Murder is follows: the unlawful killing of a human (Pen Code, with malice being, aforethought.’ Such § malice is under Penal Code section 188 when the defendant or this court as a case unnecessary where it imply malice invoking felony-murder 782, 2)—involved doctrine at p. Cal.2d fn. a situa- tion in shooting which was initiated one defendants. base, “for a antisocial motive and with wanton disregard accomplice involves,a life, an act that for human does high degree probabihty ’ 777, (People Washington, will result in 62 Cal.2d it death.” 782 [44 Thomas, 130], P.2d quoting Initiating P.2d battle such [concurring opinion].) 1] *10 704; (Id., added.) an act.” italics
The Washington do not contest the that the defendant majority holding in that case could not be convicted of murder on a vicarious the- liability However, that case ory. distinguish they purport simply by characterizing it a case merely as “wherein defendant’s at the accomplice gun pointed who, without provocation, victim shot and killed him. robbery further (Italics added.) . .”. Washington, In was gun at the victim a robber pointed appearing office; in the victim’s in the instant was suddenly gun pointed of one the victims and are used. The threatening language majority the incredible statement that making Washington because the robber in did not threat—because, words, articulate his obvious in the he majority’s “merely” at the victim—it cannot be said that he committed gun an act with death, conscious for life and to result in disregard likely if whereas he articulated his did threat—as the robbers in the instant case —his act could be found to have met such criteria. of a me, brandishing that inherent it too obvious
To is dispute that he will use the threat of the robber is the conditional in a robbery that the robber makes not with. The fact demands are if his complied unreason- Washington. It is not serve to distinguish his threat does express Washington did not articu- that, the robber in assume because just able to for his threat, safety that case had less reason to fear the victim in late his assert, the robber than orj less shooting as majority “provocation” the robber’s It absurd to did victims in the instant case. suggest law, were, not “sufficiently as matter provocative acts malice,” whereas the of lethal resistance to a finding acts in the instant case could be so considered. robbers’ sum, without more show that of threats does not the articulation ” “ life,’ for human were done ‘with wanton disregard robber’s acts ” “ it will result in death’ from ‘a high involving probability (See Washington, supra, People can be which malice implied. Gilbert, 690, 782; 704.) The differ supra, Cal.2d 2d no and an threat furnishes significant ence between an implied express additional discrimination between robbers. To basis for permit punishment of the articulation of the victim on the basis homicide committed by People v. at best.” (See threats would deter robbery “haphazardly Cal.2d supra, Moreover, kill one of the the robbers Gilbert threatened to expressly that they victims and in fact did kill a but we stated policeman, that they if it was found could convicted murder Weaver death. if this Obviously, which resulted in Weaver’s initiated shooting Gilbert act of victims at court in was of that the threatening opinion in that case—could constitute act was involved clearly gunpoint—which act,” back it would have sent the case for retrial charge a “malicious murder on as as on the that the shoot- of Weaver’s well theory theory initiated Weaver was in robbers. response shooting ing case in the instant this clear conflict majority conveniently ignore addition, their and Gilbert. In Gilbert between when as citing opinion *11 for the that can be of convicted murder proposition petitioner on a vicarious set Gilberts theory, forth discussion liability majority of only of two the three of criminal that must be principles responsibility satisfied defendant to be convicted such a on theory—the principle that must killing attributable to act of the defendant his “[t]he and the of accomplice” criminal liability.” principle “[v]icarious 704-705; 2d deleted.) at italics Gilbert's pp. dis They completely ignore cussion crucial of (italics of malice principle “[p]roof aforethought” deleted), Gilbert's statement including that a battle is gun “[i]nitiating such an act which malice can be and its failure to mention [from implied]” as being malicious the act of victims at threatening gunpoint despite fact that the latter act was involved in that case.
Not is the majority’s contrary holding holdings language to Gilbert, Washington of it is also .to the fundamental rationale contrary of those cases—that the of criminal defendants should be de- culpability acts, termined by their own not the fortuitous acts of their victims by are which beyond defendants’ and thus irrelevant to control logically the defendants’ a the contention that culpability. rejecting purpose the felony-murder robberies, rule is to this court commission prevent in Washington reasoned that can be whether robbers convicted murder should not on the depend uncontrollable of their victims. “In responses robbery every there is a the victim will resist kill. The possibility has little robber control over such a once the is undertaken as this case demonstrates. To an additional for the impose penalty robbers, would discriminate between not on the basis of difference in any conduct, their own but on the basis of the others that solely response the robber’s conduct to induce. An additional for a homi- happened penalty cide committed the victim would deter best. robbery haphazardly do one thief in every would better to stealing, hang
To ‘prevent [the law] Law, (Holmes, 58.)” (62 lot.’ Cal.2d thousand The Common p. Washington, In the instant case as in committed acts con- robbers a first additional they no acts—such stituting degree robbery; as battle—that would reflect a initiating beyond culpability othér that would degree first robbers and additional any charge justify stated, Washington murder. As there is a every robbery “[i]n possibility kill,” that the will victim resist and robbers cannot be with charged murder for a victim unless commit acts killing by addition they constituting those a robbery which additional acts murder charge upon can be based. murder Any instruction the instant case would be based acts—i.e., on solely acts first To convert such constituting degree robbery. a first convert because the victim robbery—into solely killed one of robbers is in effect to reinstitute the doc- felony-murder trine in such to the situation—contrary basic holding a defendant cannot be convicted murder his because he and simply committed a accomplices in which a death resulted. In the instant felony case as in defendant, an additional impose penalty not because of any (such malicious act as independently initiating battle) him or but because of the act uncontrollable accomplices, of the victim who resists and kills to “deter at best.” robbery haphazardly *12 conclusion, Washington have rejected
In majority holding.that be convicted of robbers can victim if by acts, robbers commit malicious in addition to the acts which constitute the which demonstrate that felony, of other underlying beyond culpability case, robbers. Washington from the By instant distinguish purporting new, irrational, have set forth a rule: if robbers majority wholly point guns at the victims without in the obvious threat inherent articulating such cannot action be convicted of' they murder for victims, whereas if can articulate their threat be convicted they they seen, murder in the same As situation. we have the majority’s purported Washington distinction of it makes no sense. In my absolutely opinion, demonstrates a desire on simply of the to overrule Wash- part majority ington sub silentio. Reed, 430], is consistent Cal.App.2d [75 Cal.Rptr.
with the views dissent. defendant robbed expressed my attendant, then a gas station attendant to an auto- kidnapped taking lot; mobile in the station two arrived as defendant and the policemen attendant were toward the automobile. As the attendant was walking seated in the automobile with defendant next to him beginning standing car, to enter the officers called to defendant to halt and police up put hands; defendant his his head in a manner by shaking negative responded that sounded like “no” and his at saying something gun pointing the head of the attendant and at one of the fired at officers. officers times, defendant a number of him and wounding accidentally killing attendant. The Court of affirmed defendant’s murder conviction. Appeal
Thus Reed involved situation after the It is like hostage-type robbery. cases, the classic “shield” in that the malice is satisfied by requirement the defendant’s the victim in the “line of fire” and placing then aiming his at one gun of the officers. the victim in this Placing highly dangerous after the is itself a position lethal act directly the defendant independent (See from which malice can be robbery, Mor- implied. ris, The Felon’s Others, Responsibility the Lethal Acts 105 U.Pa. L.Rev. 54.) In malice, on instructing the trial jury court in implied “ Reed followed the Washington precise and Gilbert: language ‘As used in connection murder, with “malice” when may the killing results from an act done defendant involving high prob- ability it will death, result in which act is done for a intentionally ” base, antisocial motive and with wanton human life.’ disregard 44.) p. Court, I am of the Although Superior Brooks 239 Cal. opinion 762], Washingt decided App.2d under incorrectly on,2 it can from distinguished from the instant case. noted, As the Court in Brooks saw” the Appeal petitioner “plainly officer a loaded “with carrying (Id., shotgun finger trigger.” to wrestle the from Attempting the officer under such cir cumstances, and “the throes of a especially during widespread explo riot,” sive involves a clearly higher degree of resulting probability death than an indeed, does armed ordinary robbery; causing discharge by wrestle it another attempting from is almost tantamount to *13 shooting one’s self. it can gun Thus be held with consistently that there was some evidence to of malice in Brooks. finding case,
In the Smith, instant the gun decedent-accomplice, pointed West, Mr. and said he Daniels had a and threatened to use it if the gun victims did not orders; with the comply robbers’ Mrs. West then began to fire on Smith and Daniels. There was no to use as a anyone attempt “shield.” As was the Washington—where case in this court held the “im- petition 2 Brooks’ hearing for to this court was denied. Justices and Tobriner Mosk and were opinion I the (Id., petition granted. that the should have been It should be noted that Appeal the Court of had issued prohibition writs of restrain ing prosecution the occupants (Lavine murder of the other two of Brooks’ car. Superior Court, 8].) Cal.Rptr. 540 [48 victim who fired the malice” to be was the theory
plied inapplicable—it shot; the not in first was to the Smith shooting prevent to Smith had initiated. response any shooting to hold It absurd to does the General—that suggest—as Attorney is not with be “to condemn murder would chargeable petitioner victims for not some further action standing idly waiting .” ad- robbers. . . I am not the victims in I way; am “condemning” any to the de- fundamental that the of criminal hering culpability principle the fortuitous fendants should determined their own acts—not acts their are and thus victims which the defendants’ control beyond irrelevant defendants’ logically culpability. de- Washington—involves a first typical case—like sum, the instant malicious act without any independently situation
gree robbery at one of the victims case, a was In the instant pointed robbers. used; at the Washington, a was language threatening office. For such highly in the victim’s suddenly robber victim aby appearing have been conduct, harsh penalties appropriately unsocial and unjustifiable because the Code, 213.) In each solely (See, Pen. e.g., § allotted. robbers, charge attempts of the victim killed one prosecutor stated in As this court count of murder. with additional defendant victim has control over a robber little response results when such uncontrollable response an additional penalty to impose on the basis of between solely robbers in a death—to discriminate deter robbery haphaz- of their victims—would uncontrollable responses at best. ardly ele- necessary evidence a total absence of
Since there is supporting as to count charging the information aforethought, ment of malice invalid of John Smith must held with murder H. petitioner Court, Superior Roads v. for a writ of (E.g., instant prohibition. proceeding 169], cited.) and cases Cal.Rptr. 275 Cal.App.2d [80 as the murder count. I would issue prohibition Tobriner, J., concurred.
MOSK, J.I dissent. People v. views on the soundness holding
While reserving my 130], 442, 402 P.2d Washington (1965) which distinction I with Justice Peters that the factual upon *14 agree is based without case is legal significance. majority opinion present he at his victim as aims a in which the criminal robbery every anis im- of the act weapon or very pointing demands his money property, the demands it will be used if conditional threat that but unmistakable plied circumstances, gesture such a deliberate Under the not met. are promptly added, therefore, the robber when is can no other meaning. Nothing have demands with the his qualifying the threat by concluding makes explicit theme, “or on that I’ll kill variation e.g., “or I’ll shoot”—or any phrase, here.” off,” have an execution right I’ll head “or we’ll “or blow your you,” bar; the case at latter two formulations were used in dispassionately viewed, however, of are semantic descendants they merely vigorous command, or life!” Dick classic “Your highwayman’s money your Turpin’s in- of victims be shocked might explicitness contemporary graphic timidation, its but traditional meaning. would they easily recognize the defend-
Fundamental of criminal dictate that principles responsibility ant be to a he subject greater when has demonstrated greater penalty To at best to the deterrent rule is frustrate culpability. ignore and at worst to constitutional invalidation on purpose risk punishment, cannot, course, the ground of invidious ascribe such discrimination. We intent view, an to the one Legislature. In who articulates robber my simply conditional is no than one foregoing threats in more way culpable who remains silent while in his victim’s face. The reason brandishing this such conditional or im- apparent: every threat—whether express Indeed, inherent in the commission of the itself. the crime plied—is robbery cannot be committed without or out threat violence: making carrying isit code law that is the in “Robbery felonious taking personal property another, possession from or his immediate person presence, will, against his added; accomplished or (Italics means of force fear.” Code, Pen. force, Fear is menace generated § of such e.g., a threat to commit violence victim unless he personal upon complies with the robber’s demands. The threat has no thus significance, independent no other to purpose is, than facilitate commission of the It robbery.
short, a incident of the crime. necessary
In this regard conditional threat is similar to the brief movements which robber virtually every finds it to to necessary victims compel per- form, such as going floor, safe or cash on enter- register, lying a back ing room while is in v. Daniels getaway Yet in progress. (1969) 225], 459 P.2d we re- [80 Cal.Rptr. held cently that the statute commit the crime of defining rob- kidnaping bery not intended include “in robberies which the movements of the victim are incidental merely to the commission of the and do not robbery substantially increase the risk of harm over above that necessarily pres- ent the crime of token, itself.” robbery theBy same the conditional threats uttered in the case at bar were incidental to merely did not *15 the to the victims. I cannot square the risk of harm increase
substantially our in Daniels. with the of decision majority spirit present opinion that no short of trig- This is not to maintain conduct actually pulling Thus will of malice aforethought. first finding ger implied and drawn is not between an disinction to be in cases express true threat, threat—whether an conditional but between a conditional implied to For after or an unconditional threat kill. example, implied—and express his victims on the robber voice an intent to shoot seizing might property him; or, later to their an alarm or giving identifying being spot prevent criminal no of surprised having escape, desperate police hope that rather than surrender he will take his own life might announce the risk of his as well. such a threat increases of hostages Manifestly greatly situation, harm over and above that which in the usual robbery is present and hence demonstrates greater degree culpability part this risk are likewise wrongdoer. consequences creating predictable: if one the victims has access to a be driven to hidden he will use weapon, it ain last-ditch out his un- his assailant from carrying attempt prevent threat, conditional kill. be said threat to Such accordingly, fairly may “initiate” the been battle as as if robber had ensuing gun just surely first to fire. found, been in malice has cases: implied
Other appear examples People v. (cf. or used his victim as a shield effect, hostage when the robber some 430]) or committed (1969) Reed Cal.Rptr. Cal.App.2d [75 with a loaded act as victim reckless such other highly pistol-whipping denied Caille, (In re Le Crim. habeas corpus petition held 1970) the barrel a shotgun minute order of May seizing (Brooks Court Superior (1966) officer ready police the risk of 762]). increased substantially These events acts ... com- be deemed “intentional harm to all well may present, (Ma- life, in death.” result likely mitted with conscious disregard ante, 583) jority opinion, however, between
To list such to delineate gulf vividly examples, un- the course of the otherwise them and traditional commands made in stated, eventful I conclude that a robber who articu- For the reasons holdup. not, alone, does that act in a greater lates such conditional threats engage arms, conduct than taciturn nor antisocial his more companions does he manifest malice as that has been concept aforethought element,, defined in our decisions. For lack of that essential the murder the defendants in the case at bar should fall. charge against