*1 Sept. No. 21964. [Crim. 1983.] PEOPLE,
THE Plaintiff and Respondent, DILLON, JAY
NORMAN Defendant and Appellant.
Counsel Defendant and Appellant.
Ronald W. Rose and Carleen R. Arlidge Collins, Denvir, Defender, State and Alice V. Quin Deputy State Public Defender, Curiae on behalf of Defendant Appellant. Public as Amici General, Robert Attorneys de Kamp, and John K. Van George Deukmejian O’Brien, General, Edward Philibosian, P. Attorney Chief Assistant H. General, Granucci, F. DeHart and Gloria Robert R. Attorney Assistant General, and Respondent. for Plaintiff Attorneys Thomas A. Brady, Deputy Opinion
MOSK, J. him first convicting a judgment from appeals Defendant two prin- The case felony robbery. presents murder and degree attempted First, subject can be the standing we whether a inquire crop issues. cipal crime between that an archaic distinction robbery; declining perpetuate attack on multiple We next address we conclude that it can. larceny, history its After reviewing legislative the first rule. degree felony-murder statute, and hence cannot we find that in California the rule is a creature challenges We various constitutional also judicially abrogated. reject of law rule; not due deny process the rule does we hold primarily malice, malice because of the burden by relieving prosecution proving murder. felony not an element of the crime of is murder, hold, however, degree felony for first
We
that the
further
penalty
against
prohibition
all
is
to the constitutional
like
statutory penalties,
subject
17),
Const.,
I,
and in
(Cal.
particular
art.
cruel or unusual
§
punishments
if
is grossly disproportion-
impermissible
the rule that a
is
punishment
committed,
cul-
to the individual
and/or
as defined
ate
the offense
(In
At the of these events defendant school stu- 17-year-old high was a small, dent in the from secluded farm living Santa Cruz not far a Mountains on Told which Dennis Johnson and his marijuana. by brother illegally grew farm, a about friend the defendant out two to investi- set with schoolmates it and take some of the gate crossing posted if After marijuana possible.
barricades and the a tin-can three evading system, boys alarm primitive farm, reached the a a wire fence. In quarter-acre by enclosed six-foot plot Johnson, effort avoid the being seen who was guarding property, the tried several boys different then hid in a hollow tree approaches, stump.
Johnson with a cocked the and ordered them appeared shotgun, weapon, out; defendant remained in but his Johnson hiding, companions complied.
demanded to what they there; know were their that doing disbelieving story rabbits, they were he told off the He warned hunting them get property. them,
them that his brother have adding would shot them if he had met the time next the on youths came his he shoot them himself. might property Defendant overheard these threats.
The two boys but inside the tree departed defendant promptly, stayed trunk until it dark. he went grew Finally emerging, to take another look at the plantation. Johnson confronted him with a the Again shotgun, pointed him, and him weapon ordered He left without further ado. go.
Some weeks later defendant returned to the brother. farm to show to his scene, however, As the latter was the over a blast was looking shotgun heard and once more the boys beat a hasty retreat.
After the school term defendant and a friend discussed the matter began, further and decided to of the with the aid of attempt marijuana “rip-off” Johnson; reinforcements. Various were for with dealing considered plans defendant assertedly hold suggested they him Hit him over “just up.
the head Tie him tree.” something. to a recruited six other They class- mates, 17, 1978, and on the of October the all morning for boys gathered the venture. Defendant had farm the the and sur- prepared rough map area. Several of rounding the boys brought shotguns, and defendant carried a .22 caliber semi-automatic rifle. They also themselves with a equipped bat, sticks, knife, wirecutters, baseball tools for the harvesting marijuana, to be paper used as or for bags masks and for carrying rope bundling plants, plants or if restraining guards they found necessary. Along way, some old sheets and tore them into to use masks or strips as additional to tie bindings Two or three up guards. of the thereafter fashioned boys and masks them on. put
The boys farm, barricades, climbed a hill towards the crossed the split into four and pairs, out spread they around field. There saw one of the
Johnson the better part brothers discretion became much tending plants; valor, Although made no for almost two hours. they little or progress consistent, it wholly ap- was not testimony various participants others two were boys altogether, that two of abandoned effort pears route, chased hill another but away by dogs began climbing cautiously watched remaining defendant his companion, pair, outside the field of just marijuana. *11 his discharged
One of the the boys accidentally farm then returning near field shotgun, boys and the two ran down the While back hill. once move, friend more reconnoitered and their next their hapless discussed had circled fired his Dennis Johnson by mistake. In the meantime weapon others, trail. They behind defendant and was approaching up bushes, carrying first that was a heard him then saw he coming through near, his rifle firing When Johnson shotgun. rapidly drew defendant began fell, without tak- at him. Johnson fled After defendant with his companions days a few nine died ing any Johnson suffered bullet wounds and marijuana. later.
I robbery the attempted Defendant first the court erred in contends phrasing of CALJIC No. charge terms CALJIC instructions Nos. 6.00 6.01. alia, proof 6.00 inter an commit a crime provides, requires attempt of a intent to ineffectual act specific commit the crime and of. “a direct but commission”; an done toward its whether such act determining and that in took “it is on the mere place necessary distinguish preparation, between deed, hand, one and the actual of criminal commencement of the doing offense on the other. Mere which of planning consist preparation, may commission, is not or for its obtaining arranging the means devising, when they sufficient to constitute an but will be sufficient the acts attempt,” certain, that specific to commit “clearly unambiguous indicate intent crime, themselves, execution and, in the are an immediate step present states, . “If has person . . .” CALJIC No. 6.01 design criminal crime, he cannot to commit once acts which constitute attempt committed commit the with his intent to avoid not further proceeding responsibility or because crime, his abandoning reason voluntarily purpose either the crime.” he was or interfered with prevented completing which an in cases in at Defendant in effect maintains a felony- homicide on charge also used to tempted felony support could result in they too because murder these instructions are broad theory, of any the absence despite to and the death liability penalty up including crime, of the underlying to an actual element conduct that would amount his crim- the fact that abandon despite voluntarily the perpetrator might cases, therefore, inal In would defendant plan. apparently mere proof not of intent and a direct act require only beyond preparation, but other than the commission of crime underlying an element intent, formation of such aban- voluntary and would allow as a defense the effort, donment of the consummation it criminal of how close to regardless had progressed.
We are not to so limit the law of instructions persuaded attempts. Code, 664; here v. given accurately (Pen. state that law see Gal People § lardo 41 Cal.2d v. 29]; P.2d Miller 308]; 159), Cal.2d People Murray P.2d Cal.
while defendant’s would frustrate “One of the proposal its aim. pur criminal law is to poses from those who intend to protect society it. When injure it is established that the defendant intended to commit a *12 crime and that in he committed an act specific carrying out this intention harm, that caused harm or sufficient it is immaterial that for some danger collateral he reason could not the intended crime.” v. (People complete 142, Camodeca 52 (1959) 903].) Cal.2d 147 P.2d Accordingly, [338 overt act “need not be the last or requisite ultimate towards proximate step commission of the substantive crime. ... criminal Applying [f] to acts culpability toward commission of crime ... is an directly moving obvious safeguard society because it it unnecessary makes police wait before until the intervening sought actor has done substantive evil to be It prevented. criminal to be allows such conduct stopped intercepted when it clear becomes what the is and when the done actor’s intention acts show that the perpetrator is his into action.” actually putting plan (People v. (1970) 61, 589]; 6 Staples see United 67 also Cal.App.3d Cal.Rptr. [85 (2d States v. 1976) 248]; Stallworth Cir. 543 1038 F.2d A.L.R.Fed [37 629, (2d 1950) United States v. 633 Coplon Cir. 185 F.2d A.L.R.2d [28 1041].)
We are entitled no society satisfied is lesser murder, protection when the is felony as does an charge involving attempt to commit a settled felony that definition must be by judicial “inherently (See, dangerous (1965) to human life.” v. Williams 63 Cal.2d e.g., People 452, 7, 457 406 P.2d as the trier of fact is Cal.Rptr. long As [47 convinced beyond reasonable doubt that the intended to commit defendant intent, a crime and inwas out that no process attempting carry public served fine purpose is distinctions between those who by drawing have managed to element of the offense and those who have satisfy some not.1 1Indeed, less, making require punish Code draftsmen of the Model Penal would even attempt any step
able as an act or “a substantial in a course of omission that constitutes
454 abandonment in voluntary
Nor is it to carve out defense appropriate instructed, As events tending context. jury subsequent properly intent to show such an once the requisite abandonment are irrelevant 69; People act v. at are 6 proved. (People Staples, supra, Cal.App.3d 38, 132]; v. v. (1964) People Claborn 224 41 Cal.App.2d Cal.Rptr. [36 679]; (1960) People Robinson 180 750-751 Cal.Rptr. Cal.App.2d [4 cited; 1059], and v. Carter P. cases Cal.App. [238 2 UCLA Perkins, (1954-1955) Attempt Criminal and Related Problems feels of conscience or 354.)2 The armed robber who a pang L.Rev. the teller can hand the bank moments before chill of fear and bolts from Un the lives of innocent endangered people. over the loot has nevertheless (cf. v. Cal.2d People Crosby like the repentant conspirator 839]; People P.2d v. Beaumaster Cal.Rptr. 730-731 [25 360]), taken direct steps he has 17 Cal.App.3d Public would be safety needlessly act. committing prohibited towards until if the to refrain from jeopardized interceding were police required in each that the his absolutely go through certain case criminal would the subject The law of eliminates that burden once plan. precisely attempts demonstrated, actions, has to commit his his intent plainly presently crime. following
Defendant submits his test proposed supported P.2d from 40 Cal.2d language 317]: Buffum *13 fragment not be some appreciable alone is there must “Preparation enough, committed, of in it will be consum- the crime must be such that progress of the will of the mated unless independent circumstances interrupted by 527, 2 Cal.2d (See (1935) . . . .” also v. Miller People supra, attempter 530, (12th 1957) 280.) We 1 Law ed. from Wharton’s Criminal quoting however, the ac- did not mean this to from by depart generally language, an of fragment definition reference to cepted of Our attempt. “appreciable act of an overt di- the crime” is a of the requirement restatement simply consummation; the novel rected towards immediate it does not establish in case. every actual of offense be that an element the requirement proved crime,” step long that is in . . of the so planned conduct to culminate . commission (Model (Proposed purpose.” the Pen. Code “strongly corroborative of actor’s criminal standard, 1962) 5.01(l)(c), 5.01(2).) normally acts considered Draft Under this Official §§ al., (See Treatment only liability. Wechsler et The preparatory be sufficient to establish could Attempt, Solic American Law Institute: Inchoate Crimes in the Model Penal Code the of itation, 571, 592-607.) (1961) Conspiracy and 61 Colum.L.Rev. People Von be in v. Hecht authority contrary the can found equivocal 2Limited and 764], (1941) Cal.App.2d 25, 47 People Montgomery v. Cal.App.2d 133 36 P.2d [283 Municipal 1, 437], Murgia Court s. disapproved ground 13 P.2d on another [111 204, 44], Corkery (1933) People v. 540 P.2d Cal.Rptr. 15 fn. 11 Cal.3d [124 are To the these cases inconsistent Cal.App. P.2d extent 297 [25 257]. decision, they disapproved. are Furthermore, understood, inde- our reference to interruption properly merely of the offender clarifies circumstances rather than the will pendent to be the act be It is requirement obviously impossible the unequivocal.
certain that a will not the crime until he lose his resolve commit person the law the last But completes necessary act for its accomplishment. invoked would be without if it could not be until
attempts largely function struck, the or the If it is not trigger was the blow seized. pulled, money do, clear from a cannot rea- acts what he intends to an observer suspect’s committed; acts are such sonably conclude that crime will be but when the that any rational would believe a crime is about to be consummated person force, absent an intervening the last-minute underway, attempt change heart not be to exonerate him. perpetrator should permitted
Defendant further contends that evidence in this case was insufficient as a matter of law to he verdict that was support jury’s guilty course, rule, attempt commit is that robbery. general “When the of the sufficiency evidence is on the court challenged appeal, must review the record in whole most favorable to light judgment determine evidence—i.e., whether it contains substantial evidence that is credible and of solid value—from which a rational could have trier of fact found defendant guilty doubt.” v. Green beyond (People reasonable 27 Cal.3d 468].) P.2d And in [164 the case of a prosecution an additional rule is Acts attempt, applicable.
that could be conceivably may, consistent with innoce.it behavior the eyes of those with of the knowledge actor’s criminal design, unequivocally crime; connected proximately to the it follows that commission offense, plainer intent to commit the more likely steps requirement. early stages the commission of the crime will the overt act satisfy v. (Pe ople 67]; Anderson 1 Cal.2d P.2d 690 [37 v. People (1955) 131 Berger 136]; P.2d Cal.App.2d Fiegelman (1939) 100, 105 P.2d Cal.App.2d *14 Here a rational trier of fact have the evidence could found that clearly demonstrated defendant’s rob. forays intent to From their to prior farm, the marijuana defendant and that his had learned it was companions guarded by armed men who were the by able and to defend use willing of deadly if the could not have necessary. Accordingly, youths weapons entertained a they reasonable that would be able walk expectation simply onto in broad without and take its valuable property daylight vig crop Rather, orous resistance the owners. must have known would by they they to use force to reach their The inference is probably required goal. fully learned, that, to what had supported by facts undisputed response they reinforcements, boys would arranged they for discussed how repeatedly with overpower restrain the then themselves guards, ample equipped knives, masks, ends—i.e., clubs, means to rope, those accomplish guns, of have to harvest the Doubtless would strips sheeting. they preferred confrontation, this remote did marijuana possibility without such but any not negate their evident intent rob.3
There was
which reasonable
could
jury
also substantial evidence from
have found
but ineffectual acts towards
that defendant
direct
accomplished
did
intended
that defendant
not
commission of the
It
robbery.
appears
fled,
before he
but
circum-
actually encroach on the
field
marijuana
does
him
criminal
to hold otherwise
liability;
stance
not immunize
from
be to
common sense
would
the technical rules of
into the
trespass
import
cases,
that no
other
juries
attempt
step
facts
appraisal
required
Here
and his compan-
California court has taken.4
the conduct of defendant
ions went
mere
armed and
them-
Having
disguised
beyond
preparation.
selves,
farm,
they
posted
set off for the
made their
barricades
way past
“no
the means of
carrying
forcibly
arrived on the scene
trespassing” signs,
encircled
any
divided
into small
subduing
groups,
themselves
opposition,
saw that the
the field and
for their
Even when they
watched
opportunity.
they
farm was not
and that
were present,
persisted
unattended
armed guards
withdraw-
by discreetly
in their
rather than avoid a confrontation
enterprise
moreover,
would
From
knew that the
not
they
guards
ing.
prior experience,
The situ-
any
hesitate
leave the field in order to drive away
interlopers.
harm,
as events would
they
ation
had created was thus
with risk
fraught
clear evidence of
unfortunately
In
the above-discussed
light
soon
prove.
intent,
defendant
his
their
could
find that the acts of
jury
rationally
a reasonable
to that
were sufficient to establish
companions
beyond
point
that
The convic-
robbery.
doubt
were
to commit
they
engaged
attempt
tion of
the instructions and
attempt
proof.
is thus
both
supported
II
standing crop
next contends that a
Defendant
rob-
or attempted
cannot in
event be the
any
subject
robbery
marijuana
it,
contents of a cash
aptly puts
person planning
steal the
Attorney
3As the
General
“A
hope
open
may
generalized
have
register
liquor
in a
which is
for business
store
he
able to snatch the
post when
and that
will be
away
clerk will be
from his
he arrives
confrontation,
when,
person
arms
money
a violent
opposition.
preparing
without
But
clerk,
himself,
it is unreasonable to
rope
bind
dons a
and obtains
with which to
mask
robbery.”
say
specific
he has
to commit
not entertained
intent
*15
upheld
though the defen
variety
been
even
attempt
4In a
convictions of
have
of contexts
(See, e.g.,
was to
committed.
crime
be
actually go
premises
dant did not
onto the
where the
robbery]; People
(2d
1976)
[attempted
F.2d 1038
supra,
United States v.
Cir.
543
Stallworth
[same]; People v. Gibson
(1980)
Cal.App.3d
Cal.Rptr. 257]
v.
110
858 [168
Vizcarra
People v. Parrish
burglary];
[attempted
P.2d
Cal.App.2d
94
468 [210
747]
murder];
v.
457 .5 argument is bery Although because it defendant’s realty, not personalty to subject finds law of support property the common definition apparent in California. we hold that larceny, of is robbery standing crop punishable much We reach has said as this conclusion both because the Legislature com to lesser and because the regard larceny, included oifense of mon law to archaic rule remnant of an is contrary hypertechnical formalism can that no seriously be defended. longer
The common the unlawful of taking law rule to limiting larceny derived from in the of land personalty realty, the undeniable fact that sense bounds, (See to be “carried subject description by metes and cannot away.” Perkins, (2d 1969) 234.) Criminal Law ed. “Real under property p. law never
English of larcenous subject [larceny]. Being incapable asportation, it was not as at the hands of the criminal regarded requiring law (Italics added.) the same Cum v. protection (People personalty.” land, mings (1896) 114 Cal. P. When restricted to [46 of the to the logic rule was unassailable. But for reasons unrelated various law, criminal to include “realty” was defined due course items many that can be or more less detached Un and removed from the land. readily fortunately, legal fiction these “immovable” never objects that are has Nevertheless, hindered would-be thieves from most of them. moving prob ably because larceny was a at common and therefore a felony law capital offense, resisted judges its to those who had application merely pilfered food or wood.6 growing therefore the artificial Courts to distinction clung between personal (4 Ste property things “savour realty” New phen, (1st 1846) Commentaries on the Laws of Am. ed. England 155), p. and held that if the during thief maintained possession continuously severance and asportation, the never became in the personalty pos property session of its owner and hence no could occur. Put larceny conversely, “if trees, a man house, it, come to steal or the lead of a or church and sever so, and after time, about hour’s come fetch it this hath away, been felony, held because the act is not but continuated and in interpolated, that interval Hale, in the property as a lodgeth right (1 owner chattel.” 5Defendant apparently robbery subject penal concedes that is to sanction. contraband California only (People was for some time jurisdiction contrary to a rule v. adhere Spencer (1921) 130]), Cal.App. long agreed P. but our court has since overruling (People precedent. this aberrant v. 211- Cal.App. Odenwald [opn. P. Today on hg.].) prohibiting den. of the rule universal 406] item, possession government of an does not criminals to take it force or license stealth from other criminals. 6“ (death) ‘The horribly punishment severe meted out this oifense in earlier times has also been in inducing frequently influential refine process courts to and limit the crime. This them, meritorious, enabled they necessity in cases which deemed avoid the pronouncing penalty. subject the death larceny is the therefore best illustration the old saying (State (Me. 1972) Day that hard law.’” cases make bad A.2d (9th quoting ed.) 2 Bishop, from Criminal Law § *16 Thus, and 510.) in a (1st 1847) perverse
Pleas of the Crown Am. ed. p. ethic, to har- enough unintended industrious of the work thieves application were at most guilty vest what stole and to it without they carry away pause fruits gath- way, enjoyed while those who tarried the trespass, along others, ered noose. by labor of faced the hangman’s Our court and limitation. The rule has been the of ridicule long subject technical many rule involved first criticized it over a “This century ago: niceties, to be absurdities. which have in what to us pure resulted appear soil the thief by For from the if article stolen was severed example, constituted but one the whole immediately himself carried so that away, severance, transaction, if, he after the it was held to be but only trespass; it on and took away the article for a time and afterward returned for it left another occasion, then it became a larceny. ... [1] We confess we do not distinctions, reasoning by the force of these nor appreciate comprehend who takes which awhy person are We do not they supported. perceive be a only trespasser, from a tree with a intent should felonious apples fallen, had he whereas, they if he had taken them from the after ground, thief; of a been from a ledge quantity would have nor why breaking if be a only trespass, of rich rock with felonious intent should gold-bearing off; and taken off the ground, the rock be carried but if left on immediately rule, later, The more sensible the thief a few it becomes by larceny. hours thief had us, been, to would have the act of severance by appears it, chattel; with a he removed converted into a and if then property intent, may he whatever larceny, dispatch felonious would be of a guilty (1868) 35 Cal. v. Williams have been in the removal.” employed (People 676.) command respect But while the rule could no longer time, reason, on that basis alone it was nevertheless honored aside common sense court felt to follow it. Reluctantly compelled putting law, “adverted to the ques in favor of common court confessed that it Legislature the attention directing for the mainly purpose tion 677.) (Id. at p. statute.” which to demand a remedial subject appears a statute rede it adopted In 1872 Legislature quick respond. “in the larceny, subject fixtures and crops personalty detachable fining at some another person had been severed thing same manner as if Code, it enacted a stat (Pen. Contemporaneously, time.” previous § into larceny, of realty grand severance ute the crime of larcenous dividing more, otherwise. larceny $50 or petty if the of the theft is worth object Code, 487b, 487c.) 282; Pen. 1871-1872, now see ch. (Stats. §§ directed at are explicitly those statutes that because Defendant argues intact the common law to leave intent reveal a only, they legislative larceny robbery. rule as it applies
459 old although To so is to concluded argue Legislature presume thieves, be maintained rule was absurd nevertheless to should applied to believe the Legislature to exonerate robbers. We are no reason given criminal, nor can we intended to be violent more solicitous of the more A more conceive of had for so. any doing rational motivation it could have theft, likely only that the foresaw as plausible interpretation Legislature and not it had little reason to expect of attached to the land: robbery, things or that farmers that robbers would eschew bank vaults in favor of barnyards, criminals would need would their that covetous assiduously fields so patrol to resort to to achieve their ends. Had the robbery Legislature anticipated in value of an illicit 1872 that the meteoric rise in and hence popularity would black market cultivators lead to violent confrontations between plant bandits, and armed we have no doubt it would have explicitly applied rule to robbery as well.
We that it did not do so. But this circumstance does not recognize compel us to conclude In today robbery. that the old rule as to larceny applies fact, defendant ever existed at common law an offers no evidence that there doctrine of and we have been unable explicit robbery regarding crops, find a single Ordinarily, case issue. any raising jurisdiction precise course, common of we are under no even an obligation exemplary apply rule to an it. law area of law not associated with traditionally Defendant rule out that the lack of points despite any express regarding fixtures, robbery or it has been understood that law crops always robbery borrows its from the law of larceny, definition subject property because former the latter the less only by crime is from distinguished circuitous 65 Cal.2d means of its v. Butler (People accomplishment. 703]; 572-573 421 P.2d Leyvas Burdick, of Crime 770]; P.2d 2 The Law Cal.App.2d Blackstone, 408-409; 242.)7 Defendant’s Commentaries pp. §
observation is correct but not dispositive.
First, the rule between severance asportation requiring interruption that we no has suffered such century erosion criticism during past Williams, it, feel did in particu- as this court longer compelled preserve courts Many in an area of its larly law not marred previously application. 7The of the California Code Com relationship acknowledged explanatory in the note part, The note stated in accompanying robbery mission the enactment of the statute in 1872. generally under necessary robbery, “Three as it is elements are to constitute the offense of wrongful possessor; 2. A taking property person presence
stood.'. 1. A from the of its it; accomplish purpose. The first appropriate intent to 3. The use of violence or fear to elements, simply larceny; . . .” being wanting, constitute second these the third Code, 1872) (Italics (1st (Cal. ed. original.) to Ann. Pen. Code Com. note § note].) 1872 Code Com. [hereinafter
have found the doctrine at odds with
and have
reason
therefore abolished it
instance,
rather than await legislative intervention. For
Court
Supreme
of Nebraska observed in 1905: “These fine technical distinctions and absurd
are
sophistries
to our
repugnant
and the courts of
conceptions
justice,
*18
most
them;
states have discarded
while those which in a
retain
measure
them have confined the rule within the most narrow limits.
Undoubtedly
modern and true rule is that he who
by his
acts converts
fixture
wrongful
into personal
and then with
intent
it
property,
larcenous
forthwith carries
away
owner,
without the consent of the
convicted of
may
rightfully
(Junod
208,
v.
larceny.”
(1905)
State
73 Neb.
211
N.W.
In
[102
doctrine,
our sister state of
of which “at
Oregon
times
application
is so subtle as to
much mental
was overthrown in
require
gymnastics,”
1914
modern,
in favor of “the
more
and better” rule adverted to above.
simpler,
(State
758,
v.
755,
Donahue (1914)
1121];
Moreover, in eroded statute England continuously the rule has been Blackstone, (4 233-234), since 1601 and in few Amer- Commentaries those ican in which have from the modern jurisdictions courts refrained adopting rule, (Commonwealth lawmakers have often v. Meinhart done so. 1952) 393]; (Miss. A.2d Garrett v. Pa.Super. supra, State [98 809, 810;
56 So.2d
Tenn. 252
S.W.2d
Williams v. State
149, 151,
31];
State v. Jackson
Lastly, Legislature expressly defendant that argues Penal Code clause of introductory of its new rule to larceny by scope 5, states, [i.e., “The of this Chapter chapter section which provisions taken is fixture or any part where the relating thing apply theft] . . . .” But does not realty application the quoted language preclude when Code; to other the Penal it merely specifies section chapters satisfied, Admittedly, bemay applied. its conditions are the theft provisions so; but it need not do it does not authorize to robbery, its own application robbery between exists virtue of the close authority relationship Moreover, refrain from (See ante.) employing fn. even if we larceny. no 487c contain for the 487b and
section 495 sections present purpose, robbery the law of clarify similar and are therefore language, eligible acted, today. it is understood it was understood when the and as Legislature proscription We that in the absence of legislative recognize 6; Court conduct, Code, (Pen. Superior there crime. Keeler is no § P.2d (1970) 2 Cal.3d 631-632 [87 rob definition of not 420].) hereby A.L.R.3d But we do expand an intent to eliminate we full effect to a clear bery; merely give legislative that in law. We are confident rule from our universally almost disfavored its 487b, 487c, meant to express the Legislature sections enacting stoically accepted that our of the rule unqualified disapproval predecessors to a extend the rule desire to in Williams. To infer therefrom a legislative and defeat this legis record new would be to the historical context pervert Holmes, to all the “We agree Wendell lative intent. In words of Oliver omit, there but they with what about not criminal laws generalities supplying is no canon laws as what saying common sense against using construing (Roschen mean.” v. Ward U.S. they obviously 722, 728, L.Ed. 49 S.Ct. stated,
For the within the meaning reasons we hold that a robbery section 211 is when affixed to is severed and realty committed property taken therefrom in circumstances that would have subjected perpetrator been another liability person if the had severed robbery property some time. Defendant was convicted previous properly attempting commit such a robbery.
III On the murder the standard CALJIC in- court charge gave jury murder, wilful, deliberate and pre- structions malice defining aforethought, murder, murder, meditated first second felony degree first degree degree murder, instruction and self-defense. The manslaughter, (CALJIC whether 8.21) No. informed the that an unlawful jury killing, intentional, accidental, if it murder in the first occurs negligent, Defendant mounts a two-fold attack to commit during attempt robbery. *20 he contends it is an on first rule in this state: degree felony-murder abolish, (2) and if on the uncodified common law rule that this court should statute, unconstitutional.8 contrary it is embodied in a the statute is taken Defendant first asks us in effect to adopt position (1980) Mich. 672 Court in v. Aaron 409 Michigan Supreme People [299 304, rule felony-murder N.W.2d 13 A.L.R.4th and to abolish the 1180] i.e., II of this opinion, a further exercise of the we invoke in power part con our to conform law of this state to contemporary the common power v. Bethle (See, Rodriguez e.g., ditions and notions of enlightened justice. 765, 382, 525 (1974) hem Steel 12 Cal.3d 393-398 Corp. Cal.Rptr. [115 669], cited.) origins the dubious P.2d and cases Defendant emphasizes doctrine, it over the levelled against strictures felony-murder many scholars, limitations and judicial courts and and the years by legislative do not disagree have We circumscribed its increasingly operation. for the criticisms; we hold no brief indeed, make it clear
these our opinions murder felony stated that We have repeatedly rule. (1982) 30 Cal.3d People v. Ramos grounds we to reach these issues in 8On factual declined (1982) 266, Cal.3d 553, 908], People v. Haskett 30 and Cal.Rptr. 639 P.2d 589-590 [180 however, 841, 851, 640, in the appear, will P.2d As Cal.Rptr. footnote 2 640 776]./ [180 felony- murder verdict on the jury at bar there is no doubt that the based its first case to the court both before in their communications jurors plain murder rule. The made this fact verdict, verdict; on the record the court stated following that rendering and after their theory any other conviction under degree murder support that the evidence did not a first felony properly before us. than murder. The issues are therefore
463 is a “highly artificial which “deserves no extension its beyond concept” 574, Cal.2d (1966) v. 64 required application.” (People Phillips supra, 582; accord, 86, (1977) v. Henderson Cal.3d 92-93 People 19 [137 1, 750, 1180]; 560 P.2d 10 Cal.3d 756 Cal.Rptr. (1974) v. Poddar People 28, 910, 342]; (1971) 518 v. 6 Cal.3d Cal.Rptr. P.2d Satchell People [111 33, 1361, 33-34 383]; v. Sears People 489 P.2d 50 A.L.R.3d Cal.Rptr. [98 180, 711, 2 Cal.3d 847]; 186-187 465 P.2d v. People Cal.Rptr. [84 431, 494, Wilson (1969) 22]; 1 Cal.3d 440 462 P.2d People Cal.Rptr. [82 522, 188, 580, v. Ireland 70 Cal.2d 450 P.2d 40 539 Cal.Rptr. [75 A.L.R.3d 1323].) And we have that the rule is much censured recognized “because it resurrects from a a ‘barbaric’ con anachronistically age bygone that has been cept discarded in the (Phillips, supra, its place origin” 583, 6, fn. Cal.2d) 64 “in because almost all cases which it is it is applied unnecessary” “it erodes the relation between criminal li and moral ability 777, culpability” v. 62 Cal.2d (People Washington 130]). 402 P.2d Cal.Rptr. [44
Nevertheless, a review of convinces thorough legislative history us that in California—in distinction to first Michigan—the degree felony- murder rule is a creature of statute. we However much with the may agree Aaron, therefore, reasoning we cannot to the its solution duplicate prob lem: this court does not sit aas with the super-legislature power judicially abrogate statute merely (See because it is unwise or outdated. Griswold v. Connecticut (1965) 381 U.S. L.Ed.2d 85 S.Ct. [14 1678]; Estate Horman (1971) 5 Cal.3d Cal.Rptr. 785]; P.2d Russell Cal.App.3d
We with begin Aaron. After a detailed of the survey history felony- murder doctrine in and the England (299 United States N.W.2d at 307- pp.
316), the that opinion observes in has not fit Michigan Legislature seen murder, malice, to codify murder, either or but felony instead has left each (id. 319-323). to be The then governed by common law at court pp. however, that in order to of the common
explains, the harshness mitigate law rule that all murders were of one kind and were by alike punishable (see Maitland, death 2 Pollock (2d 1909) & Law ed. History English 485; Blackstone, p. 194-202), Commentaries the Michigan Legislature in 1837 a adopted statute murder into two with different dividing degrees for punishments each. The statute that “murder” committed either provides (1) wait, wilful, deliberate, certain listed by means in lying or other (poison, and premeditated or the commission or com killing) during attempted arson, mission of certain listed felonies or (e.g., robbery, burglary), rape, is murder in the first degree, all other kinds of murder are murder in the second (299 321-323) out degree. N.W.2d at opinion points pp.
the statute is a of the first in nation on this enacted copy legislation topic, in been construed Pennsylvania by Michigan that it has long i.e., device, to be a “mur- courts no more than a that when degree-fixing wit, der” is otherwise with malice afore- an unlawful proved—to killing statute thereof at first if it was thought—the degree fixes simply degree felonies; committed one of the the listed by listed means or one of during not does transform all so committed into first automatically killings murder.9 rule, the has no Aaron
Concluding Michigan statutory felony-murder court stresses that it the common law already severely felony- has restricted decisions, when the murder rule in its its e.g., by barring application prior is not life” when the homicide felony to human “inherently dangerous is not attributable to the defendant because it is committed directly by (Id. 324-325.) intended victim at As a felony acting pp. self-defense. decisions, it no extension” of those the court holds “logical longer permis- sible in a mere intent any automatically prosecution Michigan equate to commit the aforethought required malice underlying felony (Id. the common law murder. The court concludes by abolishing rule is either rule in that the felony-murder jurisdiction, reasoning its evidence, when unnecessary—when including malice can be other proved relevant the nature and of the underlying felony—or unjust— circumstances rule when such malice cannot be because in those cases the violates proved, (Id. at individual moral culpability. the criminal law’s basic premise 327-329.) pp. it clearly ap
From the
of the 1794
statute
reported history
Pennsylvania
it as
characterizing
degree-fixing
Aaron court was correct in
pears
rule.
measure rather than a codification of the common law
Mur
(See
Degrees
Statute
Keedy, History
Pennsylvania
Creating
764-773.)
very
der
California has
97 U.Pa.L.Rev.
statute,
189,10
need not
on its
similar
Penal Code
and we
speculate
section
from the
taken directly
its draftsmen
that it was
acknowledged
provenance;
Pennsylvania
opinion
Pennsylvania
9The
notes that the
statute is so construed
Myers
A.2d
(e.g.,
438 Pa.
courts
Commonwealth ex rel. Smith
472, 476])
217];
Pa.
A.2d
A.L.R.3d
Commonwealth v. Redline
486 [137
*22
only
degree-fixing mea
viewed
jurisdictions
that similar statutes in other
are likewise
738;
736,
1979)
v.
Galloway (Iowa
Warren
State
(E.g.,
v.
275 N.W.2d
sures.
State
173,
177-178];
At this from that of our law to point, diverge sharply appears and With to homicide result Pennsylvania Michigan. any respect from the commission of or to commit one of listed ing attempt felonies statute, in the our to be not a only decisions hold section 189 generally device but rule: no degree-fixing felony-murder also a codification cases, of malice is in such and independent proof by operation required the statute the is deemed to be murder as a matter of killing first degree difference, law. show, The as we will lies in our history. session, 16, 1850,
In its initial on the California Legislature April Punishments,” “An Act statute adopted Crimes first concerning 229.) regulating (Stats. criminal law of this state. ch. Sev law, eral sections of that act are at common relevant to our As inquiry.
murder was defined as the unlawful malice of a human with killing being (§ 19), there aforethought only was one and it was degree, punishable by (§ 21). malice, death an unlawful without was divided Manslaughter, killing defined, into its voluntary (§ 22.) forms. The latter was involuntary alia, act, inter as a in the killing commission of an unlawful one “Provided, significant qualification: that where such involuntary killing act, shall in the of an which ... committed happen commission unlawful intent, in the prosecution of a felonious the offence shall be deemed and to be adjudged (§ 25.) murder.” of section 25 in effect quoted proviso codified the common law rule in this state.12 killing meaning “Thus if a is murder within the 187 and and is one of sections killing degree
of the means enumerated in first section the use of such means makes however, killing murder as a matter of a one emphasized, law. It must be enumerated degree means in the statute is not murder of the first unless it is first established murder, murder, it is murder. killing If the was not it cannot be first and a killing aforethought. showing cannot become murder in the malice Without a absence of malice, killing perpetrated by it is immaterial that the one of the means enumerated (Italics (People v. Mattison original.) the statute.” 4 Cal.3d 182 [93 481 P.2d 12By only “involuntary” quirk draftsmanship proviso purported apply to kill absurd, course, ings felony. punish during committed It would have been as murder killings felony, was therefore “voluntary” killings during those but not clause (See apply construed to intent to kill. regard all such homicides without Doyell 48 Cal. *23 1856,
The next when amend- event occurred in the significant Legislature ed section 21 of the the crime murder into two Act of 1850 to divide certain first murder was defined as that committed listed degrees: degree by felonies, means or in the while all other mur- of certain listed perpetration ders were of the second degree.13 torture, the addition of the of murder means
Except category by to the 1794 Penn amended section was identical quoted language 21. sylvania statute. cit. 97 U.Pa.L.Rev. at (Compare Keedy, op. supra, court, i.e., 773.) It was therefore in the p. way by construed same measure the harshness of the common degree-fixing designed mitigate 90, 93; (See, (1857) law of murder. Moore 8 Cal. v. e.g., People (1861) v. 393-399.) Bealoba 17 Cal. The court explained did not to define murder amendment the adopting Legislature “attempt anew, but which it be told only might to draw certain lines of distinction by in a case a cruel and aggravated whether crime was such particular law, character as to deserve the extreme or of a less aggra penalty character, vated v. Haun (People a less severe deserving punishment.” 96, 98; accord, (1884) 44 Cal. 65 Cal. v. People Keefer P. 1872, two relevant Thus on the eve of the enactment of the Penal Code of act, which statutes were in force in California: 25 of the 1850 section rule; 21 of the same codified amended section act, which and tailored degrees pun- divided the crime of murder into not consistent but only compli- ishment The two statutes were accordingly. of a section felony, When a occurred in commission mentary. killing murder; of that degree declared it to be section 21 thereupon prescribed if the felony murder involved—first degree to the according felony particular arson, if it was other any or second robbery, burglary, degree rape, in a de- This court between statutes felony. recognized relationship the Penal before shortly cision a conviction of murder committed reviewing 85.) The 48 Cal. Doyell supra, Code of 1872 took effect. (People one, with the in an act (at 94) doing court first observed that “Whenever p. another, even accidentally, the life of takes design committing felony, 25; then rea- .)” . . The court (Acts this is murder. Sec. p. perpetrated murder which shall provided pertinent part: 13Amended section 21 “All willful, wait, torture, deliberate and by any other kind of poison, lying means of or or attempt perpetrate perpetration or premeditated killing, or which shall be committed in the arson, degree; the first and all robbery be deemed murder of any rape, burglary, shall (Stats. ...” ch. degree; other kinds of murder shall be deemed murder of second § prescribing the death changes punishment, corresponding made amendment also for second years to life imprisonment of penalty for first murder and a term of degree murder. *24 467 soned that the 21 the law change 1856 amendment of section “did not of murder, done in the to commit It a severer attempt felony. only a prescribes where the murder in to is committed the punishment attempt perpetrate arson, (on of the of these of rape, robbery enormity or account burglary fenses), than where is other committed in out felonious carrying any (Id., 94-95.) design.” pp. however, 1872,
What was evident before much less so after plainly was the of the adoption operated Penal Code. The enactment of that code (Pen. Code, the Act of 21 25. repeal therefore sections and including 6.) But of those two 21 in the provisions section Penal only reappeared § Code, contrast, thereof;14
as section 189 by provision of felony-murder code, 25 section was not reenacted in the hence “ceased to be new and (People 1121].) law.” v. 175 Cal. 48 P. From the Logan [164 of such drawing a deliberate distinction between the two and provisions, itself, from wording section 189 certain inferences arise which point conclusion that the the section to like Legislature operate, meant its predecessor, solely as measure. degree-fixing
First, “It is ordinarily Legislature to be that the de by presumed an leting express of a statute intended a in the provision change substantial law.” v. (People 1]; accord, Valentine 28 Cal.2d 142 P.2d Schmel 51 Cal.App.3d Under this principle, decision not reenact the Legislature’s felony-murder of section 25 provision 1872 codification implied intent to abrogate the common law rule that the section had embodied since 1850.
Second, aside from a few grammatical wording section changes 14.) Indeed, identical to that of & section 21. fns. (Compare its draftsmen is acknowledged this obvious fact: “This section founded upon Act, Sec. and Crimes Punishment amended the Act by as 1856.—Stats. 219. The Commission made no material change p. (1872 note, circumstances,
the language.” Com. In Code these itself code decreed the “The construction of section 189: proper provisions Code, statutes, of this so far are as they substantially existing same adopted in provided: 14As perpetrated section 189 “All murder which is means deliberate, wait, torture, willful, poison, lying or any preme or other kind of killing, arson, perpetrate ditated or which perpetration attempt is committed in the or rape, robbery, burglary, degree; murder of the and all other kinds murder first are degree.” of the second ensuing years Over the Legislature of committing added one further “means” first (by murder “destructive device or explosive”) (may- two further listed felonies hem violation of molesting]), but the essential structure § [child statute today. ante.) the same (Compare remains fn. thereof, and not as new enactments.”
must be construed as continuations *25 Code, (Pen. 5.)§
Third, to one of the to be meaning given when a statute defines terms, (Great Lakes on the courts. its that meaning ordinarily binding 152, 156 (1977) Cal.3d Inc. v. El 19 Properties, City Segundo [137 of Lines, 42 154, (1954) Air Inc. 244]; 561 P.2d v. Western Cal.Rptr. in the 621, was used 723].) Cal.2d 638 P.2d It is the word presumed [268 accordingly. the will be construed sense the statute specified by Legislature, 263, 270 (1926) Post 199 Cal. Evening Monrovia (App lication of the simulta Legislature P. In the 1872 Penal Code [248 187, “the un the crime of “murder” as enacted section neously defining malice and section aforethought,” lawful of a human with killing being, murder in certain constituted ways that “murder” committed providing “murder” in section 189 in the first Under this the word degree. principle, i.e., unlaw an would have had the for it in section meaning prescribed ” ful “with malice killing aforethought. Fourth, in a when a word is used it is generally presumed statute, the intended to have same sense in one of a it is particular part (Stillwell v. State the statute. if it another same meaning appears part accord, County Clara 313]; P.2d Santa Bar 29 Cal.2d [173 (1975) 51 Santa Clara County Dist. Assn. v. Attorney Investigators v. Her 255, 263, 115]; also People fn. 4 see Cal.App.3d Cal.Rptr. 706], and 637 P.2d Cal.3d nandez a fortiori to section seem to cited.) cases This rule would apply used the word 189, where in a sentence the Legislature single compound de ante): the section (fn. “murder” once but with two referents only certain committed all “murder” which is fined first murder as degree As listed felonies. certain during listed methods or which is committed “mur the word ante), in the half of this sentence (fn. noted above first under malice aforethought; committed with der” means an unlawful killing in the rule, meaning have had same the same word would foregoing felonies). the listed (i.e., murder during half of the same sentence second inferences, contends General Attorney overcome these Seeking He intent. contrary legislative are of a three items of statutory history proof 189, but in to section note Code Commission’s first relies on the California us. the issue before on little or no commentary light of fact that sheds point the contin- justification a correct historical The commission with began re- Nowhere measure.15 role of degree-fixing ued section 189 aforethought, being, with malice a human killing of every common law unlawful 15“At other in the death, from each killings greatly differed but as such punishable punishment led atrociousness, all in the same involving them injustice the manifest note, however, mainder of the assert that statute did commission was also 25 by codifying intended serve the of former section purpose Instead, rule. merely approval the note quoted Sanchez, long (People from this court passage opinion 17, 29-30) degrees Cal. which how to between the two discussed distinguish murder—i.e., how function of degree-fixing to administer former section It 21. is true the discussion included a statement to effect that “where the is done in the killing perpetrate perpetration attempt one of have some the felonies ... no enumerated jury 21] [section *26 (Italics but to find the in the first option prisoner degree.” guilty [of murder] added; 29.) id. at But the court did not mean p. obviously thereby Sanchez rule, to transform 21 section into a as the statutory felony-murder Legisla- had ture codified in 25. When already that rule earlier section years context, rather, read in carefully both the statement and the entire quoted of in passage which it to no more than an appeared amounted Sanchez review of the explanatory law.16 statutory then-prevailing, pre-1872, statute, Lacking direct evidence in the of the murder the history Attorney General next refers us to the manslaughter evolution of the statute during the same (Stats. 1850, The 1850 period. 229) act ch. a p. provided rather diffuse (§§ definition of four 22- sections. manslaughter, covering 25.) Involuntary was defined an unintentional oc- manslaughter killing as death, in the curring commission of either a lawful act to likely produce in an caution, unlawful manner or without due “an unlawful act.” (§§ 25.) In of 1850 were reenacted manslaughter definitions in form as simplified section of the Penal No change meaning Code. intended,
was and the commission “embodies the reported that section 192 material portions” (1872 sections 22 25 of 1850 law. Code through note, 85.) Com. p. however,
One change in Gen- wording, by Attorney now stressed seen, As we eral. have section the commission deleted the drafting of former section declared when the proviso affirmatively 25 which murder; “unlawful act” is but at the felony the will be deemed killing same time the commission added to the definition manslaughter during the enactment dividing affixing of statutes degrees, murder into two to murders of the second punishments Among milder those than to of the first. first enactments to 22d, 1794, Pennsylvania (1872 this end was the April copy.” which statute of ours is a note, Code Com. event, any by 16In of the language most relied on the commisson was later Sanchez (People
held court to constitute “erroneous statements of law.” Valentine supra, Sanchez]; 28 Cal.2d [disapproving copied P.2d instructions from 1] [same].) also see v. Bender P.2d 27 Cal.2d 182-183 8] In “not an “unlawful act” the amounting felony.”17 qualifying phrase, (§ Penal act 16) amounting felony” Code of 1872 unlawful “not any misdemeanor, latter was there- was a and the primary phrase purpose been fore to rule that had codify misdemeanor-manslaughter implied contends the the 1850 General legislation. Attorney apparently quoted that the com- should also be read phrase negative implying pregnant felony- mission had elsewhere affirmatively provided corresponding i.e., act “not murder rule: that a unlawful killing during by specifying of section amounting felony” manslaughter by operation deemed commission an unlawful act that a killing during assertedly implied of another which did amount to was deemed murder felony by operation unreasonable, remains: which statute. The inference is not but the question codify other statute was believed the commission to rule? answer, and last
For the General turns to his third piece Attorney evidence, wit, of the crime not of homicide but history legislative *27 con- The of the Penal Code arson. arson statute in force before adoption In that alone.18 felony tained a rule to specialized felony-murder applicable the law of arson into sections commission rewrote the prior rule from Code, the felony-murder 455 of the Penal but omitted specialized 455 read in its new to section statutory the scheme. Its official comment 6, 4,5, Act concerning and of “This is founded Secs. entirety: chapter upon 1856, the 132. The text omits and of crimes 1856.—Stats. p. punishments of any the lives persons clause in Sec. 4 which that ‘should provides [sz'c] deemed guilty offender shall be burning be lost in of such the consequence ’ murder, This provision accordingly. of and shall be indicted and punished arson, in the perpetration is the in that case is killing surplusage, of for entirety: thus its 17Section 192 read in malice. It is of two “Manslaughter being, without killing is the of human unlawful kinds: Voluntary—upon quarrel passion. or heat of “1. a sudden act, felony, in the amounting to or Involuntary—in not “2. the commission of unlawful manner, death, without unlawful or might produce in an commission of a lawful act which (Italics added.). due caution and circumspection.” manslaughter, the 1872 adding the of vehicular Except for a 1945 amendment offense wording of the section is still in effect. arson, in 5: section imprisonment the statute declared prescribing of 18After term burning consequence of such any person persons be lost in life or “and should the lives murder, be and aforesaid, and shall indicted guilty of as be deemed such offender shall 5, 132.) (Stats. p. ch. punished accordingly.” § ante) purported apply (cf. the statute fn. By quirk draftsmanship another (§ 4), again a literal (§ degree 5) not arson degree but to first proviso to second arson from had been taken verbatim proviso The reading have been absurd. of the statute would (Stats. ch. statute, degree that crime. recognized only one our first arson which into Legislature divided arson 235.) when the p. discrepancy arose in 1856 § both. applicable to degrees proviso plainly did not make the two but within the the murder in Sec. degree.—See falls definition first note, (Italics added.) (1872 ante.” Code Com. From the the asks us to infer that emphasized Attorney General language the commission intended 189 to its version section proposed incorporate rule, i.e., first oc- statutory felony-murder any killing that as the there- curring during commission of one of the listed felonies (including fore arson) the section both function of making served the felony-murder such the crime mak- of murder and the function of killing degree-fixing that ing crime murder in the first unrea- Again the inference not degree.
sonable, it although doubted the matter may thought that the commission us through carefully as the General would have conclude. Rath- Attorney er, it the no appears making change commission assumed was simply the law: heavy its reliance the its note on to section opinion Sanchez suggests read commission mean that predecessor opinion 189—i.e., to section amended section 21 of 1850 act—had itself codified above, rule. felony-murder For reasons explained reading either or section would have been mistaken. Sanchez
Nevertheless, for such error commission is present purposes any immaterial. It no matters that have longer the commission misread may pre 1872 law this on be point; what matters is apparently commission lieved that its version of section 189 codified the rule as to felonies, the listed form section 189 Legislature adopted *28 proposed by commission. “When a the Cal by statute proposed ifornia Code Commission for inclusion in the Penal of 1872 been Code has enacted the the Legislature without substantial of the report change, commission entitled to in the statute and in de great weight construing the intent termining of the Legislature.” Wiley v. 18 Cal.3d (People 162, 135, 171 881]; accord, Keeler 554 P.2d v. Superior [133 619, 630, Court (1970) 2 cited in supra, Cal.3d fn. cases If we assume the 1872 drew the that the At Legislature inferences commission, General now torney asks to draw the us intent regarding the rule quoted to conclude the acted with the compels us Legislature same it intent when section 189. adopted 14, (see ante) in
Nothing history section 189 fn. ensuing suggests that the acted with different intent when Legislature any subsequently in amended the statute in 1981. We infer various most respects, recently believes, that the still in Legislature as the code commission did apparently 1872, that section 189 codifies the rule. That first felony-murder belief is controlling, of how its historical foundation regardless shaky may be.
472 close, the evi- we hold that balance remains
Accordingly, although Attorney General is dence of thus identified present legislative intent of section sufficient to of the language outweigh contrary implications 189 its are to construe section 189 and We therefore required predecessors. rule in Califor- as a enactment of the statutory degree felony-murder first nia.19
IV that if section 189 codifies Defendant contends the alternative rule, He the first the statute is unconstitutional. degree felony-murder prin of law in two that the rule due urges process respects. violates cipally First, protects he “the Due Clause invokes Process principle reasonable doubt of accused a against except proof beyond conviction upon he is charged.” the crime with which every necessary to constitute fact 368, (In L.Ed.2d (Italics added.) re Winship 397 U.S. [25 malice afore- then as follows: because 90 S.Ct. He reasons (Pen. is an murder as defined California element of the crime of thought Code, 187), People prove of Winship requires quoted language § When such malice doubt in murder beyond every prosecution. reasonable murder, however, the felony is conducted on a theory prosecution because it rule of this burden proof relieves to commit the malice from the defendant’s intent raises “presumption” concludes, rule, violates the due pro- thus underlying defendant felony. cess clause. Wilbur Mullaney on v.
For defendant relies specific authority v. Montana 1881], and Sandstrom U.S. 684 L.Ed.2d 95 S.Ct. In Mullaney (1979) 442 L.Ed.2d 99 S.Ct. U.S. 2450]. list, from as court too numerous expressed opinions 19This is also the view citing supra, [mistakenly the statute as early (People Keefer, Cal. Court, (Pizano fn. 3 198”]) Superior 21 Cal.3d *29 late v. “section to as as 1978 however, Bird, 524, J.]). inspection, by On Cal.Rptr. C. close opn. P.2d [145 659] [dis. consisting opinions that are unsatisfactory, of jurisprudence appears of this often much (1914) 16, (see, (cf. ante) People v. Bostic erroneously e.g., or not all either fn. at reasoned 754, explain prece 380]). or these attempt P. to harmonize 167 Cal. Rather than [141 issue, analyze the full
dents, the we have undertaken importance and because of of the history legislative of section 189. analysis of this leaves standpoint consistency the outcome recognize from the We that plainly a creature of misdemeanor-manslaughter rule is the Although much to be desired. degree 192, to the first Code, 2), as (Pen. the conclusion we reach same par. statute § inference; felony- degree and the second only by inference on felony-murder piling rule any express remains, without a doctrine judge-made it since murder rule has been 574, 582, and cases (see (1966) supra, 64 Phillips v. Cal.2d People basis in the Penal Code to be in would seem subject whole cited). legislative reconsideration thorough A order. defendant was convicted of a scheme which statutory murder under Maine defined murder as an yet unlawful with malice killing aforethought, required the prosecution to a reasonable that the homicide prove only doubt beyond intentional; (i.e., unlawful excusable) neither when nor justifiable the prosecution elements, established would be those two malice presumed unless the defendant could a of the evidence that by prove preponderance (i.e., he had acted in the heat of on without passion sudden provocation malice). The United States it a denial of due Supreme process Court held to thus shift to the an of the defendant burden of disproving ingredient him, offense charged against even it of his only affected though guilt. homicide,”
In Sandstrom the defendant was convicted of “deliberate de- fined Montana law by as a or killing knowingly” which is com- “purposely mitted. The United States held a denial of due Court it Supreme process that context to instruct the a law intends the jury person presumes Code, ordinary (See his acts. Evid. consequences voluntary § court stressed that the question whether the homicide was committed “pur- posely knowingly”—i.e., with respect defendant’s state of mind an killing—was essential element of the crime under the Montana stat- utory (442 scheme. 49].) U.S. at 520-521 L.Ed.2d at The court p. pp. [61 then (at reasoned 49-51]) 521-523 pp. L.Ed.2d at that if the jury pp. [61 understood the challenged instruction to a conclusive state presumption, would have denied wholly defendant benefit of presumption innocence on the crime, mental element of the unconstitutional procedure under Morissette v. United States 342 U.S. 274-275 L.Ed. [96 288, 306, 72 S.Ct. If on the other hand the took the jury instruction 240].
to raise a rebuttable it would have to the defendant the presumption, shifted element, burden of disproving same unconstitutional procedure under (442 Mullaney. U.S. 51].) L.Ed.2d at p. [61 i.e.,
We do not question defendant’s due major pro premise, cess requires a reasonable doubt each element of the proof beyond crime Code, charged. (See 1096; Pen. v. 12 Cal.3d Vann § 225-228 524 P.2d Defendant’s minor Cal.Rptr. premise, however, is flawed law incorrect view the substantive of felony murder sure, in California. To be of this numerous court opinions recite that malice is (or “presumed” cognate phrase) operation felony-murder rule.20 But none of those to the constitutional opinions speaks said, 20In various contexts example, “pre this court has that the rule sumes” (People malice Ketchel 456 P.2d 71 Cal.2d 660]), (People 780), “ascribes” malice v. Washington supra, 62 Cal.2d *30 “posit[s]” (People 522, 538), (1969) “imposes” malice supra, v. Ireland 70 Cal .2d malice 574, 583, (People Phillips (1966) 6), v. supra, 64 Cal.2d or it results in an “im fn. that 375, 1, putation” (People (1971) malice Cal.Rptr. of v. Burton 6 Cal.3d 491 P.2d [99 793]) 750, “implication” (1974) 755). an (People supra, of malice v. 10 Cal.3d Poddar raised, (In re controlling. issue now and their is therefore not language 250, cited.) 553], Tartar 52 Cal.2d P.2d and cases [339 time, for the first we start with Addressing indisput issue if on malice is indeed able fact that of the rule felony-murder effect to the is a It not shift “conclusive” one. does “presumption,” simply malice, of as Mulla defendant the burden that he acted without proving rather, not the defendant is ney; permitted prosecution he is to follow that necessarily offer such at all. Yet it does not any proof crime, denied the with to an element of innocence presumption regard inas Sandsfrom. We are led if we treat the “conclusive presumption astray as a do so whether malice malice” true presumption; begs question we must look is element of murder. And to answer that felony question, labels so-called beyond “presumption.” to the this underlying reality drafters of the Evidence Code chose
Although perpetuate presump the traditional distinction between rebuttable and “conclusive” (id., 601, 620), tions did so in order to they emphasize apparently §§ law. prior the code on the were continuations provisions topic largely But in their were not misled their own they by terminology: accompanying are frankly note the drafters that “Conclusive acknowledged presumptions law.” evidentiary not rules much are rules of substantive they so as Code, 29B West’s Ann. (Cal. Com. com. Evid. Law Revision § (1966 ed.) Evid. so explained Wigmore Code this is is Why be such a “In cannot thing with characteristic strictness there clarity: ’ another is said to from one fact ‘conclusive Wherever presumption. is absolutely preclud that the
conclusively in the sense presumed, opponent exist, the not the second fact does any ed from evidence that showing by exist, the second first fact is shown rule is that where the really providing of the proponent’s for the fact’s existence is immaterial wholly purpose rule case; and not a rule law and to to make a of substantive is provide or varying as to certain propositions the burden of apportioning persuading omitted.) on (Fn. (9 Wigmore forward evidence.” duty coming 307-308.) 1981) (Chadbourn Evidence rev. pp. § in upholding view. For example, This the foregoing court has adopted Code Evidence now declared “conclusive presumption” legitimacy “A conclusive (a), presumption we subdivision stated section Cal.2d (Kusior v. Silver of law” a substantive rule actuality in Jackson Jackson 657]). Again, 354 P.2d 619 Cal.Rptr. we 289], observed 430 P.2d Cal.2d but not a is really presumption presumption that “the so-called conclusive R. B. v. Vincent Joan (Accord, law.” rather a rule substantive *31 475 619, 619, 9]; 126 623 v. People 179 Cal.App.3d Cal.Rptr. Cal.Rptr. [126 330, (1971) [incest].) Russell 22 335 Cal.App.3d Cal.Rptr. [99 277] We take the the of malice” same view of “conclusive presumption in felony-murder cases. In case of murder other than murder every felony the as an element prosecution has the burden of malice undoubtedly proving Code, 187, 188; (Pen. (1945) of the crime. v. Bender 27 Cal.2d People §§ 164, 180 8].) (1) P.2d Yet to the must also prove say [163 prosecution cases, malice in (2) but that the existence of such malice is “conclusively of the intent to commit presumed” defendant’s upon proof the underlying is a circuitous that in such felony, merely way saying Note, cases the prosecution (See need Irrebut only the latter intent. prove 449, table An Presumptions: Illusory Analysis (1975) 27 Stan.L.Rev. 462- words, In Wigmore’s of malice is therefore im “wholly issue material for the when the purpose case” proponent’s charge felony murder. In that event the “conclusive is no more than a presumption” pro wit, cedural fiction that masks a that as a substantive matter of reality, law malice is not an element murder. felony
Our decisions have recognized reality. the means or on “Killings by Code, under [i.e., occasions discussion enumerated Pen. are § 189] murders of first because statutory substantive definition of the crime. Attempts statute to the in terms explain of nonexistent jury ‘conclusive tend more to than to presumptions’ enlighten confuse jury unfamiliar with the inaccurate law practice rules of substantive stating terms of rules of (Italics added.) evidence.” v. Valentine (People (1946) 121, 136; accord, Cal.2d supra, (1946) 28 v. Bernard 28 Cal.2d People 207, 636].) 211-212 P.2d definition” of the statutory “substantive [169 crime of first degree murder in not include felony this state does either malice or “These premeditation: elements are eliminated felony- doctrine, murder and the criminal intent is the only specific intent required 672, to commit v. particular felony.” (People (1973) Cantrell 8 Cal.3d 1256], 688 504 P.2d on Cal.Rptr. other disapproved grounds [105 668, 685, (1979) v. Flannel 25 Cal.3d fn. 12 Cal.Rptr. [160 1], 318, 324, 603 P.2d v. 22 People Wetmore Cal.3d fn. 326 Cal.Rptr. P.2d This is “a rule of substantive law in [149 California and not shortcut to merely evidentiary malice as it finding withdraws from the jury find either malice requirement they express . or . . implied malice” v. (People Stamp Cal.App.3d short, 598]). In “malice not Cal.Rptr. aforethought is an element of murder under the felony-murder doctrine.” v. Avalos (People 736].)21 Cal.App.3d People supra, Aaron 21In Michigan Supreme 299 N.W.2d Court was question
divided felony majority over whether malice is an element murder. The *32 in fact raise a
Because rule thus does not felony-murder “presump- crime, tion” of the an it does not violate existence of element due clause This is also process Mullaney as construed in Sandstrom. each of that the issue.22 of our sister has addressed holding jurisdictions due For the same we need be detained defendant’s second by reason not claim, i.e., rule that a doctrine violates the process in criminal statutory proof burden presumption affecting People’s the fact cases invalid between is unless there is a “rational connection” (here, intent) (malice). (See Ulster the fact proved felonious presumed 797, 777, 140, Court v. L.Ed.2d 99 County (1979) Allen 442 U.S. 165 [60 57, 6, 2213]; 36 L.Ed.2d Leary (1969) S.Ct. v. 395 U.S. United States [23 81, 463, 1532]; (1943) S.Ct. U.S. 467-468 89 Tot v. United States 319 [87 conclude, 1519, 1524, If, felony- L.Ed. here 63 S.Ct. we all, is murder doctrine of malice at there raises no actually “presumption” of true no occasion to by validity standard judge governs substance, without as the Court of is therefore presumptions. point (1974) v. 38 already has Johnson Appeal (People held. 1, 834]; Territory see 7-8 also Cal.App.3d [112 195, (9th 1975) 197-198.)23 Guam v. Root Cir. 524 F.2d
V
two
of first
It follows from the
that the
kinds
analysis
foregoing
in
case
murder
a fundamental
in the
degree
respect:
this state differ in
(id.,
justice argued
104),
concurring
dissenting
it is
fn.
while a
insisted that
at
321
latter,
(id.,
15).
the reasons he
agree
all
pp.
that it
not
at
332-333 fn.
We
is
sets forth.
1333,
(1st
1976)
Westberry
535
1334.
Murphy
Cir.
F.2d
22Federal:
v.
596,
(1976)
v.
244
604-605.
Iowa: State Nowlin
N.W.2d
279, 286],
(1976)
on an
v.
overruled
Kansas: State Goodseal
A this broad factual Despite Legislature has spectrum, provided one all only punishment scheme for homicides the com occurring during mission of or to commit an section 189: attempt offense listed in regardless homicide, of the defendant’s individual with to that he culpability respect must be adjudged first murderer and sentenced to death or life degree with or imprisonment without identical parole—the possibility punish ment inflicted for deliberate malice afore premeditated and murder with (Pen. Code, illustrates, thought. 190 et As the record before us seq.) § however, in some first this Procrustean degree felony-murder cases penalty may violate the prohibition against of the California cruel or Constitution Const., (Cal. I, unusual punishments. art. § matter is In governed by Lynch re Cal.3d 410 [105 921], (at
Cal.Rptr. Lynch 414), P.2d and its As progeny. “We for issue full awareness of and the distinct approach respect roles of We courts in such an Legislature undertaking. recognize that in our is the of the tripartite system government it function legislative branch to define crimes and and that such prescribe punishments, questions are in the first instance for the of the Legislature alone. judgment [Cita [|] Yet legislative ultimately by circumscribed authority remains tions.] constitutional the infliction of cruel or unusual provision forbidding punish- IV, ante, parts felony 24As shown in III murder such malice is not element automatically by murder is operation fixed first of section 189.
ment, of our Decla- as an integral part this state adopted people branch, task the judicial ration of It is the difficult but Rights. imperative Constitution, of that condemn violation any coequal guardian (1972) 6 Anderson Cal.3d As we concluded in prohibition. is accorded 880], ‘The thus Legislature P.2d and in statutes specifying discretion possible enacting penal broadest crime, as to whether punishment but the final
punishment judgment ” function.’ it decrees constitutional limits is a judicial exceeds the rule that Lynch we In the exercise of that function adopted if not only prohibition violate the constitutional statutory may punishment method, if but also it is grossly dispro it inflicted a cruel unusual is We recognized imposed.25 offense for which portionate *34 is, the offense of to “Whether a is particular punishment disproportionate course, is a of fitting proper penalties of The choice question degree. science, an involving appraisal an exact but a skill legislative not alternatives, corrected, consideration to be weighing evils practical will; in factors, the public appro of relevant to policy responsiveness cases, The also be permissible. some for priate leeway may experimentation a unless statute interfere in this process should not judiciary, accordingly, i.e., [citations], all to the offense’ ‘out of prescribes penalty proportion cruel to against so severe in relation to the crime as violate prohibition 423-424.) to define that (Id., Undertaking or unusual at punishment.” pp. cases, must exercise its power limit for future we that the state explained and must treat the limits of civilized standards to within penalties prescribe “Pun beings: with worth as human its members for their intrinsic respect deny limits and which to those transgress ishment is so excessive as (ibid.) that a (Id., 424.) We concluded worth cannot tolerated.” at p. “if, al violate the California constitutional may prohibition punishment method, to cruel in it is so disproportionate not or unusual its though and offends which it the conscience crime for it is inflicted that shocks fundamental notions human dignity.” life-maximum that an indeterminate Lynch
Under this standard we held
unconstitutionally exces-
exposure
for second-offense indecent
sentence
rule to strike
In
we have invoked
proportionality
sive.
succeeding years
considered
being
offenders from
recidivist narcotic
legislation barring
down
910, 917-929
(1974) 10 Cal.3d
(In
for
re Foss
[112
parole
years
applicable
rule
recently reaffirmed a similar
Supreme
25The
Court has
United States
Punishment
Unusual
“The Cruel and
corresponding provision of the federal Constitution:
directed,
which
‘against
punishments
all
Eighth
part,
Clause of the
Amendment
charged.’ [Ci
to the offenses
length
severity
greatly disproportioned
are
their excessive
1140, 1146, 102 S.Ct.
782,
(1982)
L.Ed.2d
(Enmund
v. Florida
458 U.S.
[73
tations.]”
—
645-647,
—,
L.Ed.2d
Helm
accord,
Solem 3368, 3372];
U.S.
[77
S.Ct.
1073];
5-18
519 P.2d
In re Grant
Cal.3d
Cal.Rptr.
[132
590]),
553 P.2d
release of a defendant who
Cal.Rptr.
order the
(In
served 22
re
years for a nonviolent act of child molestation
Rodriguez
384]),
14 Cal.3d
537 P.2d
653-656
Cal.Rptr.
invalidate the
convicted of misdemeanor
statutory requirement
persons
re
(In
lewdness must
with the
offenders
Reed
public
register
sex
police
216]).
In each such decision the court used certain identi “techniques” (8 425-429) fied at Lynch Cal.3d to aid in determining proportion pp. i.e., relevant here is
ality. the first of these ex Especially techniques, offender, amination of “the nature of the offense and/or particular (Id. to the both regard society.” danger present offense,” With respect to “the nature of the we that when is recognize viewed in the abstract very high level such robbery-murder presents danger, second only to deliberate and murder with malice premeditated however, In are aforethought. conducting this the courts to consider inquiry, abstract—i.e., not only offense in the as defined the Legislature—but *35 also “the facts of the (In (1974) crime in supra, re Foss 10 Cal.3d question” 910, 919)—i.e., the the totality of circumstances the commis- surrounding motive, sion of bar, the in the at offense case such factors as its including committed, involvement, the way it was the extent of the defendant’s the of his acts. consequences it
Secondly, is obvious that the courts also view “the nature of the must offender” in the concrete rather than the abstract: the although Legislature terms, can define the offense in general each offender is an in- necessarily dividual. Our Lynch, in for concludes opinion that example, by observing the crime, in punishment not fails fit the “it fit question only to does not (8 the criminal.” at 437.) Cal.3d This branch of the p. inquiry therefore court, focuses on the particular person before the and asks whether the is to punishment grossly the defendant’s individual disproportionate culpa- bility as shown such factors as his char- age, personal prior criminality, acteristics, and state of mind. provisions 26In three cases excessively high parole the courts have invalidated minimum (People (1975) for Vargas Cal.App.3d narcotics violations. v. 53 533-538 [126 88]; 841]; Cal.Rptr. Cal.App.3d Cal.Rptr. v. 49 745-748 [122 Ruiz
People Malloy v. Cal.Rptr. two Cal.App.3d 954-956 In cases [116 the courts struck down to grossly disproportionate indeterminate life-maximum sentences as (People the Keogh Cal.Rptr. crimes. Cal.App.3d 928-933 817] [four $500]; forged counts of totalling checks than In re Cal.App.3d less Wells 596-604 molesting].) child nonviolent 23] [second-offense in Thus we observed decided cases illustrate both these concerns. remarked in (ibid.) the the Lynch open that at conclusion of trial judge having capacity court that the defendant was “a man of great potential,” We then emphasized well with intellect. get along people superior that that the not undermine appraisal “circumstances of oifense” did (id., 437-438): deliberately with that of Lynch at case contrasting pp. exhibitionist, sole act was offensive we that the defendant’s public explained mas- to see him carelessly allow a lone in drive-in restaurant waitress of the night.27 turbate in relative of his car in the middle privacy dis- which is not The cases since that a Lynch punishment demonstrate constitutionally impermissible the abstract nevertheless proportionate Thus culpability. if it is individual to the defendant’s disproportionate to our Foss we had doubt abuse a serious problem “no that heroin presents sale supply, to restrict society necessary harsh penalties may omitted; Cal.3d at Yet (Fn. p. and distribution of substance.” obtain acquaintance we stressed that the defendant had to assist agreed with- going through heroin an addict and was only because latter was drawal; from addict and was suffering that the defendant was himself an events; he took was withdrawal at the time and that the sole payment (Id., 918.) We concluded of the narcotic a dose his own. at enough bar automatically the conscience such circumstances shocked for either the the defendant from for 10 “without consideration parole years 923). (id., offender or his offense” at p. Code, (Pen.
In convicted of child Rodriguez molesting defendant was 288) then prescribed the indeterminate life-maximum sentence given § fix his term Adult did not statute for that crime. The Authority maximum, habeas he release on sought less than and after serving *36 years face, con- was on its He first claimed the statute unconstitutional corpus. was dispro- that the grossly life-maximum sentence tending prescribed contrary, to the stress- to the offense child we held of portionate molesting; (14 at even death Cal.3d for and ing grave injury crime’s potential 647-648). as applied In defendant attacked statute the alternative the pp. to his him, 22 had served were urging disproportionate to that the he years mer- held this claim in the of the case. We actual circumstances culpability that even We reasoned custody. and him from itorious ordered discharged excessive, the facially not be may a maximum though statutory penalty requires constitutional cruel unusual prohibition against punishment briefly ain petitioner masturbated 27Similarly, in Reed we underscored the facts that the We emphasized vice further witness undercover officer. men’s restroom and the sole was an Force, steadily was years Air for 21 in the United States petitioner had served record, prototype he not the we “is employed, prior arrest concluded that had no 924). (33 p. poses grave society" Cal.3d at of one who threat in case every the defendant be term that is “not specific given dispropor- tionate to of the individual offender” and reflects “the cir- culpability 652.) cumstances at (Id., the time the offense.” After re- existing p. concluded, rule
viewing prior decisions we “Thus the that the measure of constitutionality for crime individual is well punishment culpability 653.) established in the (Id., law of this state.” at this rule to the in the manner
Applying record we stressed in Rodriguez, which the defendant committed the offense and history his past personal “Nor traits: do the characteristics of this offender at the time of particular the offense justify years’ He old at the only years was imprisonment.
time of the offense. His conduct was his limited intel- explained part his ligence, frustrations on brought intellectual and sexual inadequacy, and his inability to with these He has cope no criminal problems. history activity from apart problems associated with his sexual maladjustment.
Thus, it that neither appears the circumstances of his offense nor his per- sonal characteristics establish a such danger society sufficient justify prolonged (Id., period imprisonment.” at p. we take note of the recent United
Finally, States Court case of Supreme Enmund v. Florida L.Ed.2d supra, U.S. 3368];
S.Ct. it deals with although the federal constitutional prohibition cruel and unusual against punishment, reasoning is in- opinion In structive. Enmund two robbed and shot an persons fatally elderly couple farmhouse; at their defendant Enmund’s sole involvement that at was time of the he crimes sitting a car some 200 yards parked away, waiting help robbers Enmund was escape. convicted a con- being structive aider and abettor and hence a in the commission of a principal first murder, degree felony and was sentenced to death. The United States Su- reversed, Court preme holding that such punishment is unconstitutionally in the circumstances. The disproportionate court that “The explained ques- tion before us is not murder, of death aas disproportionality penalty the validity but rather punishment for Enmund’s own capital conduct.
The focus must on his not culpability, on that of those who committed robbery victims, and shot the for we on insist ‘individualized consider- ation as a sentence,’ constitutional the death requirement imposing [ci- which means that we must on ‘relevant facets of the focus character tation] *37 id., of (Italics and record the individual offender.’” in at original; p. 3377].) L.Ed.2d at 102 S.Ct. at p. p.
[73 facts, to those the Turning court reasoned that “Enmund did not kill or intend kill to and thus his different from that culpability plainly of killed; robbers who them to yet state treated alike and attributed Enmund of those culpability who killed This was impermissible [the victims]. (Id., under at L.Ed.2d at Eighth p. Amendment.” p. [73 at as a for the justification S.Ct. in retribution p. Again, rejecting the court “we think this much on the very depends penalty, explained: intentions, Enmund’s degree expectations, Enmund’s culpability—what and actions were. American has considered a defendant’s long criminal law intention—and to ‘the therefore his moral critical guilt—to [his] [citation], criminal and the Court has found criminal culpability,’ penalties to be in of intentional wrongdoing.” excessive the absence unconstitutionally d., 3378].) The at at 102 S.Ct. at (I p. p. L.Ed.2d p. (458 at 102 S.Ct. p. court concluded U.S. 782 at L.Ed.2d p. 3378]) at that for “Enmund’s criminal must culpability penalty purposes be limited to his in his must be robbery, punishment and participation ” (Italics added.) tailored to his personal responsibility guilt. and moral
B record in the case at bar. We a to similar proceed analysis outset, herein defendant the offenses As noted at the when he committed in his he took the stand a At trial 17-year-old was school student.28 high a testimony From that behalf and side the story. own told the his jury of mind dur state of the evolution of defendant’s plausible picture emerged life, uneasiness, bravado, for his these to fear events—from ing youthful self-serving, as is often discounted Although such panic. explanation jury that judge case record demonstrates repeatedly weight. and substantial fact defendant’s credence gave testimony large blast acciden- Thus defendant he heard the first shotgun stated that when his that one of his became concerned set off he tally colleague, hapless mar- a man guarding have Next he watched as friends been shot. might shotgun, carrying while plantation walked towards sound ijuana from the same blast shotgun five or ten later he heard second minutes alarm, “we he testified that direction. At turned to anxiety point blasts there, shotgun were hell because there get wanted out just away.” blown off and we friends being our were going thought a guard he had overheard One of then told him defendant’s companions heard a man the boys afterwards Shortly “These kids mean business.” say, it them; first was one believed at they the trail behind stealthily coming up Johnson, friends, carrying shotgun their it was Dennis but soon saw hide, was sure and defendant could neither retreat nor arms. boys port defendant, near drew Johnson had seen them. According Johnson lived, age youths his common for apparently which setting 28Inthe rural he hunting also held a license. to have .22 caliber rifles. Defendant *38 he the “he outwards and shifted his and was it position shotgun pointing he know thought I was ... I didn’t what to getting ready just shoot me. trees, ... I that’s when I just
do. saw him the behind the and swing gun started Defendant his waist and it some- firing.” raised his rifle to “pointed in where his He “I I direction.” testified that the was just trigger, pressed it, . . . so scared. I went I don’t know just kept and shots off. squeezing just Johnson, . many how ...” He denied whom ill-will towards having any know, he did not and that he personally began shooting only reiterated because “I was afraid he was me. . . .He where I was to shoot knew going at. I couldn’t do I I didn’t about I anything. shot him. even think it. just never thought when John- shooting anybody.” firing Defendant stopped fell. son
On when the cross-examination defendant testified that Johnson pointed direction, shotgun his told what to do and I had no “Nobody me support, I the just pulled so I scared . . .” trigger many times because was so . times, When asked why he had fired “I nine defendant never replied, thought between time time. pulling trigger first or the ninth I just he was kept pulling because me and I had to do going shoot something.
I didn’t have it aimed at him. I didn’t whether it hit him know would I just not. had it I pointed. just so times because I pulled tigger many was so frightened.” witness,
Called as an a clinical expert psychologist testified after conducting series of tests and examinations he concluded that defendant was immature in a number of he ways; intellectually, showed poor judgment child”; and planning; he functioned a much socially, “like emo- younger he tionally, reacted much “again, like a child” younger by denying reality of stressful events and rather in a world of living make-believe. In particular, psychologist gave as his that when confronted opinion of Dennis armed with figure Johnson the circumstances of shotgun case, defendant probably “blocked out” the situation reality of reacted reflexively, without There thinking all. was no expert testimony to the contrary.
theAt close of the evidence the jury sent a note view judge asking, adult, of the fact that an defendant was tried as was the being what purpose of the psychologist’s testimony. note that “From his testi- explained mony, [i.e., that Norman’s appears emotional mentality defendant’s] maturity is that of a minor.” The directed the judge jury not speculate adult, why defendant being tried as an and to give expert’s testi- mony whatever effect the instructions permitted. instructions, outset, those
Among as noted standard at the was the first degree felony-murder instruction which informed unlawful jury *39 accidental, murder in first intentional, is whether or negligent,
killing, the plain robbery.29 Despite if it occurs an to commit during attempt degree note in the instruction, a second sent the judge of this the jury language could deliberations, bring whether it time asking course of its this the killing if it found even manslaughter verdict of second murder or degree rereading by The judge replied an during robbery.30 occurred attempted here instruction, concluded that “If the jury and reiterated felony-murder . . . and the concluded jury that there robbery was attempted be murder then it would robbery, during occurred killing attempted instructed, convicting verdicts soon returned Thus the jury first degree.” murder. and first robbery degree defendant of attempted however, the judge the jurors, In his final remarks before discharging the felony-murder evident reluctance apply with their expressed sympathy the verdict this point, “I want to a lot about say rule to these facts: don’t evidence, that, certainly decision is your I can tell based you upon but rule and harsh very murder rule is felony the evidence. This supported did not evidence support I felt that the harshly in this case. operated very felony than first other theory murder conviction under any a first degree then added.) The told murder, (Italics judge and the law is the law.” degree life to serve a to state prison that defendant could either be sent the jurors ad- and the Authority, prosecutor or be committed to the Youth sentence have about the disposition they may vised them that observations any be welcomed. case would invitation, wrote to the judge of the jury the foreman
In to that response the verdict later, to return unwillingness two days confirming jury’s “It relevant part: letter stated in rule. The felony-murder compelled by members, not myself, including most of the difficult for extremely Dillon Norman our verdict as to influence allow and sympathy compassion a minor. . . . moral standards is closely by mod 29Indeed, more facts even instruction fit the judge made the standard during killing only when the felony murder not degree of first ifying require it to a verdict accidental, “in self intentional, when it is committed but also felony negligent, or is in this case. the heart of the defense defense.” The latter was 30The note read as follows: robbery, can we consider attempted guilty of If defendant is “We need a clarification].] degree 2nd murder manslaughter etc. accidental, are robbery, even attempted of an during is killed the commission if some one bring guilty in a verdict of to 1st murder]?]” we to “The law with the evidence and harsh but extremely *40 law, law,’ ‘the the we choice but to a keeping jury bring the had little verdict of of 1st guilty murder.
“We covered the of abandonment of every aspect, including possibility it, the had robbery, but as ‘The attempted ship so prosecutor] aptly put [the sail’; left the dock and had set the beyond stage action had gone preparation.
“We, verdict, would have but it our jury, considered a seemed lesser were when hands tied all had been 8 of the elements of ‘attempted robbery’ met. The other two to only elements make it were homicide and a causal connection. It is from the that was so.” obvious evidence (Italics in original.) “the most or all
Expressing general consensus opinion jurors,” the foreman then defendant “his best implored give judge opportunity in life” by him to the Youth rather than committing Authority sentencing him to state that was even more prison. defendant immature Emphasizing than a normal minor of his foreman that “Mere con- age, explained rather, him”; finement would not be the answer for there was a need for psychological in a skill “to assist this counseling training young or trade person with fellow man in an world to trying cope already tough his in, live even under normal circumstances.”31
At the sentencing the intake of the Youth hearing Authority supervisor testified that he had stipulation reviewed the inter- probation report, defendant, viewed and found defendant the discretionary meets eligi- bility standards of the Authority.32 Youth The court then ruled defendant for the statutorily eligible Youth him that Authority, and committed in- stitution. The stressed that he had the judge evaluate carefully opportunity not only evidence but also defendant and that he personally, agreed the jury’s view of the of the proper case.33 disposition court, lodged 31This letter superior appended was with the thereof copy and a was as an
exhibit to opening defendant’s brief appeal. requests appeal on that the record on Defendant letter, augmented Attorney opposed request. to include not and the General has Court, 12(a), Pursuant augmented. to California Rules of rule we record to be so order the 32The record sentencing hearing of the was filed in the related in this court case (Dillon), Superior Court S.F. discussed below. 33“I think jury very the attitude of the practical jury attitude. This is a that was unbiased; do, evidence, jury obviously they of the did what had to in view what and, time, totally justified they feelings. at the express same could also these other That objectivity. They They demonstrates to I judges, their were not were as am. me advocates. here, accept So I give great weight jury’s deal of to the not because recommendation to, have I but because makes some to me.” sense he had why reasons then to defendant the several judge explained know, First, on the basis of “I
decided not to sentence him to state prison. evidence, that are imma- you observations and my very strong supporting offense, than 17 in ture; were less you that at the time committed this you Even ways.” a lot of other and in intellectually, many emotionally, respects, than most of people much less mature at the time of are sentencing, “you from Second, a dangerous person” . . . .” “I don’t consider you your age that “I Indeed, the judge emphasized of future risk of harm. standpoint of the people, don’t consider as you dangerous many people—most found guilty who have been I ever come across *41 all of the that have people here, have no Third, you murder.”34 “most importantly of first degree who have no murderers record. You can’t find first very many degree not, have in the past, “is that you record.” The said the point, judge, here. was involved conduct that demonstrated conduct that is the kind of seriousness, offense, its despite I I think that this And think that’s important. is, context with your past.”35 to some out of degree, times, the acknowl- judge nine to the fact that the was fired gun
Adverting kill could somebody how trial “I could not imagine this edged prior deliberation, times, premeditation, nine another shoot them without person, all.” human being for another and ... a total absence of concern any satisfied, however, the basis of the on “I am testimony, After hearing not here, by you. planned evidence that the of Dennis Johnson shooting doubt as to a reasonable that I have indicating I that. I am not only accept evidence, that that I on the basis of whether that but accept, happened, inten- Rather, it was “an although was not a deliberate killing.” planned, that, engage decided to you tional it was “a killing,” killing spontaneously, not, true. think, basically or it is true story in. I whether your completely making.” own of your You You were in situation were trapped. trapped we individual culpability attenuated this of defendant’s showing Against we first him. That punishment, inflicted on actually weigh punishment After observe, expected. than all parties out to be far more severe turned and he took Authority Youth defendant to the the trial court committed order on the ground attacked the commitment collaterally the People appeal, at the time of the held that Court of jurisdiction. Appeal of excess as a was ineligible murder of first degree herein a minor convicted offense (People Superior Authority. the Youth of law for commitment to matter county attorney had been district judge the bench the appointment 34Prior to his years. for a number defendant recites that appeal, on in the record probation report, 35The officer’s included offenses, infraction, misdemeanor, juvenile convictions, felony, prior whether of has no criminal for a with the authorities involved defendant has never before been and that “The offense.” (Dillon) Court Cal.App.3d trial therefore issued a writ of mandate directing
It commitment,36 court to vacate the order of and that court was left with no alternative but to sentence defendant to life in state imprisonment prison.
(Former Code, Pen. Defendant’s is thus the punishment § sentence, massive loss of entailed in liberty such a with the disgrace coupled of being stigmatized In re Winship (See first murderer. degree supra, 397 U.S. 375].)37 L.Ed.2d
Because his no have minority could been inflicted greater punishment on defendant if he had committed the most form of homicide aggravated known to our law—a murder executed in cold blood after carefully planned a calm and mature deliberation.38 Yet earnest en- despite prosecutor’s deavor throughout the trial a case of first prove degree premeditated murder, the triers of fact that view of the evidence: as the squarely rejected jurors’ communications to the made judge if it had not been for the plain, rule they would have returned a verdict of a lesser *42 homicide than Moreover, first degree murder. after all the hearing testimony and diligently character, evaluating defendant’s history and both the judge and the jury manifestly believed that a sentence of life as a imprisonment first degree murderer was excessive in relation to defendant’s true culpabil- seen, as we ity: have made they strenuous but vain efforts to avoid imposing that punishment.39 36Atrial jurisdiction court has to set appeal aside a void order even while an in the case Shows, pending. (People is v. West Coast Cal.App.3d Inc. 467 [89 37Weare aware that eventually defendant will eligible parole. for on release Because however,
of the killing, circumstances of the potential parole many years his date lies in the future: under Board of regulations, Prison Terms defendant term faces base (Cal. years Code, 2282(b)), Admin. tit. plus years 2 additional for use of a firearm § (id., 2285). § 38This implicates contrast Lynch technique second noted in determining propor for i.e., tionality, a comparison challenged penalty prescribed of the with those in the same jurisdiction (8 426-427.) more serious pp. crimes. Cal.3d at While such a comparison particularly is striking when a punished severely more serious crime is less than the offense question, in it remains punished severely instructive when the latter is as as a more serious (See, e.g., 925-926.) crime. In re supra, Foss 10 Cal.3d That is the case here. We need not Lynch invoke the technique—a comparison challenged third penalty prescribed with those for the jurisdictions—in complete same offense in other order to our analysis. We techniques Lynch discussed these in only examples ways of the as which approach courts the proportionality problem; implied punishment we neither held nor that a cannot be ruled constitutionally excessive disproportionate respects. unless in all three (See, e.g., In re Rodriguez supra, 14 already Cal.3d has served [“Petitioner a term by any Lynch (italics which added)].) disproportionate criteria is to his offense” remains, above, The sole test quoted as punishment whether the “shocks conscience and offends 424.) fundamental dignity.” (Lynch, notions of human 8 Cal.3d at separate 39The opinion of Justice Kaus offers an additional reason for the reached result opinion. in this But his route—whether described as nullification or civil disobedience—
The record fully the triers’ conclusion. It shows that at the time supports of the events herein defendant was an immature He had unusually youth. Reed, law, and, had no trouble with the was not the prior Lynch as of a hardened criminal threat to prototype society. who poses grave in this case shooting was a to a situation that suddenly developing response sure, defendant his life in immediate To be he perceived danger. putting largely himself, brought situation on and with his hindsight response unreasonable; might appear but there is evidence that because of his ample he immaturity neither he nor foresaw risk was able to creating extricate himself without when that risk seemed to eventuate. panicking
Finally, the excessiveness defendant’s is underscored punishment chastisements handed out petty six other who youths participated with him in the same offenses.40 It is true that it was defendant only who actually pulled of his but several of his armed trigger gun; companions themselves with and the remainder carried such shotguns, as a weapons knife and a baseball bat. Because their raid on the marijuana plantation was an elaborately concerted evidenced numerous overt prepared attempt acts, it were all venture. At the appears they very least coconspirators were they aiders and abettors and hence in the commission of principals Code, both the (Pen. and the of Johnson. attempted robbery killing § whatever, Yet none was convicted of any of homicide and none was Instead, sentenced to state for any crime. the one member of the prison who was an adult group was allowed to no contest to charges plead conspiracy (i.e., fact) commit after the robbery accessory being *43 to a and felony, was on three with one put years’ year county probation Five of jail. defendant’s fellow minors were made wards of the simply court; these, one only was detained—in a education and juvenile training short, the other four were project—while on and sent home. In put probation defendant received the heaviest law while those penalty provided by jointly with him responsible received the on the wrist. lightest—the proverbial slap In his of the thoughtful analysis Professor Fletcher finds sur- subject, prising—and heretofore “neither state nor the unjustifiable—that legislatures have courts to rule into line with well-ac- sought bring criteria of and cepted accountability individual proportionate punishment.” impliedly reopens society the classic debate as to whether has created courts of law or courts exercise, that, justice. seriously urged Whatever the result of that it cannot when asked by jurors, judge you applicable “I have a trial must advise them: instructed on the law it, may ignore you pragmatic to this case. Follow it or choose.” Such advice achieve as instances, justice likely anarchy. suggest in isolated but we the more result is immunity against remaining group granted giving 40The member of the evidence all the others. (Fletcher, on 12 Sw.U.L.Rev. Felony-Murder Reflections Constitution, Under we take that compulsion step today.
For the reasons stated we hold that in the circumstances of this case of this a first defendant a sentence of life punishment imprisonment I, murderer violates article Never- degree section Constitution.
theless, because he killed the victim without intentionally legally adequate defendant provocation, and to be as a second may ought degree punished murderer. is affirmed judgment robbery. as to the conviction of As attempted murder,
to the conviction of modified the de- judgment by reducing is and, modified, of the crime to gree murder in the second as so is affirmed. The cause is remanded to the trial court with directions arraign on pronounce judgment defendant and to determine wheth- accordingly, er to recommit him to the Youth Authority.
Bird, J.,C. J.* Kingsley,
REYNOSO, J. I concurin the result.
Generally, is, the role of a court the law. That we high settle are a court which sets decisional not a court which error. policy, corrects Ac- we have an cordingly, institutional with a voice which can be duty speak followed courts of this state. Too more often many separate opinions, not, than bench, confuse decisional law. The unlike case most decisions demands separate opinions so that the bench and bar know which may the distinct sections commands a majority.
I write concur, separately only indicate the in which I sections those sections which I concur in the only result. I,
I concur with sections
II and V. The
*44
conduct indeed went beyond
was an
as section I
preparation—it
attempt,
correctly concludes. And section II
reasons that a
can be
realistically
crop
the
of a
object
robbery.
section V
In re
Finally,
correctly
Lynch
applies
* Assigned by Chairperson the the Judicial Council.
KAUS, J. fully parts I, opinion.
I concur in II and IV of the lead Further-although rely heavily century precedent I would more on a legislative history addition to the rather slender as a basis for the existence statutory degree felony-murder of a first rule-I concur in the conclusions part reached in III. V,
With to respect part although my views the concerning seriousness of defendant’s conduct parallel Broussard, those of Justices Richardson and is evident that were they not shared The jury. facts recited part V, B of Justice Mosk’s leave no doubt that the opinion trial court’s instructions—both
before and during deliberations—caused an unwilling jury return a verdict fact, of first murder. In degree record compels conclusion if the trial court had fully answered the jury’s question posed in its second note—whether it “had to” in a verdict of bring first degree if murder it found that the victim was killed during attempted robbery— worst, defendant would have been found of second murder. guilty degree When the jury asked whether it was find defendant compelled guilty first degree true, murder if it found certain facts to be it was obviously for a looking way to avoid the harsh consequences
rule. The law, court reiterated its earlier instruction on concluding if “this occurred killing then it during robbery, would be attempted murder of the first When this degree.” instruction is with the coupled court’s earlier standard admonition that it is the duty “to jury’s apply rules of law that I state to to the you facts as determine them ...” you (CALJIC 1.00) No. this left the no choice. jury As far as average lay concerned, is juror failure to follow the court’s instructions invites legal sanctions of fine, some kind and unless the is a juror willing risk or jail what, heaven knows he or she feels bound to follow the instructions. Yet the essence of the a jury’s power “nullify” rule or result which it considers that the
unjust law cannot touch a who precisely juror joins legally unjustified verdict on a acquittal guilty lesser than one charge which the calls for.1 It me proof seems to that when the jury practically verdict, court to show it begged which to avoid a first way by nullification, see, 1For diverse views on subject jury e.g., Dyke, Scheflin & Van Jury Controversy Contemp. The Contours 43 Law & Probs. No. Nullification: 51; Scheflin, 168; Jury Say Right To No 45 So.Cal.L.Rev. Nullification: Christie, Departures Legal “Jury Legitimated From Rules: Lawful Nullification" Disobedience (Book Kadish, 1974) (hereafter Christie); Review 62 Cal.L.Rev. Kadish & *45 (Stan.U. Zeisel, Disobey 1973); (Little, Jury Discretion to Press Kalven & The American 1966) 286-312.) pp. Brown legal was a fact of from if it followed its conscience immunity harm legal its which the bound to instruct. life on court was The of a to what it an power jury nullify unjust considers law has been of our common law since Case 6 Howell’s part heritage Bushell’s all which—against the foreman of a jury State Trials 999. Bushell had been William court—acquitted the evidence and in of the direction of the defiance assembly. William to unlawful Imprisoned Penn and Mead for preaching disobedience, on a writ of habeas their were freed eventually the jurors a that thenceforth The case all established for corpus. practical purposes, a perverse was immune sanctions for rendering acquittal. from jury legal the from gamut grudging Judicial attitudes toward nullification run jury v. in United States endorsement. For example, enthusiastic acceptance that it was (D.C.Cir. F.2d defense claimed 1972) 473 Dougherty the law entitled to an could as stated disregard instruction that jury mo- shining the court. The After some recalling majority disagreed. Zen- of Peter
ments of nullification in American jury history—the acquittal and the under slave many fugitive refusals to convict ger prosecutions medicine law—the court “What makes for as an occasional stated: health would be disastrous diet. The there is exis- daily as a fact that widespread ‘necessary tence of of its existence a jury’s approval prerogative, counter to not estab- case-hardened does judges arbitrary prosecutors,’ informed lish as an must that the be imperative jury judge (473 a why F.2d at failed understand dissent power.” p.
doctrine that on the criminal bring to bear “permits jury process (dis. (id., sense of fairness and justice” opn. particularized Bazelon, J.)) may which jury should not be to the attention brought but to be fair and render bursting justice, desire particularized does not know how.3 as the does not nullification starry-eyed
One have to be as about jury different the one dissent that the here is than Dougherty issue appreciate of delib- on nullification at outset Dougherty. To instruct presented I the law. erations to consider jury disregarding invites affirmatively do not advocate it. What understand the such course and arguments against which, here, after however, with a jury that the court was faced happened its to render 2Minimally jury power such an have instruction should informed immunity from if it justify, punishment lenient a verdict more than the facts its to exercise that power. chooses Wiley in United v. 3Dougherty They has been cases. are listed States followed in several (10th (8th 1974) 106, 107, States Grismore Cir. footnote 4. Since then United F.2d (8th 1978) 1976) Cir. 572 F.2d 546 F.2d United States v. Cir. 849 and Buttorff 627, have followed suit. *46 asked;
some accord, deliberation and of its own in effect we “May nullify?” The answer it was given incorrect. obviously
I know of no case which has turned on the
whether such an
question
answer is error which
affect the
may
eventual
verdict.
jury
Perhaps Sparf
and Hansen
v. United States
While in the nothing court’s that it was analysis suggests recognition jury’s saved the it that the trial power day, court had significant obviously to mention it. thought proper
Actually, itself if the Dougherty feels the suggests jury spontaneously urge nullify, different situation is The “occasional medicine presented. above, . . . daily diet ...” continues in this fashion: “On passage quoted the contrary, it is pragmatically useful to structure instructions in such wise case, that the feel jury must about the values involved in the strongly so that it must strongly identify the case as a call of establishing high itself conscience, and must initiate and undertake an act con- independently travention of the (473 1136-1137.) established instructions.” F.2d at pp. (Italics added.) While does not visualize that language spontaneous “call of high conscience” will result in a note to the trial court “what asking do we do now?” it is clear that even in the ma- Dougherty opinion it creates a situation the one it jority different from had quite previously which, discussed—the absent con- jury may judicial nudging, perfectly tent to the strict letter of the law. apply
That the trial shoving the direction of nullification is jury something court need not do does not mean that it is the jury permitted pressure jury generally 4Some have authorities defended nullification on the basis of the now dis jury determining carded notion well responsibility that the has the ultimate the law as commonly jury’s Modern jury facts. enthusiasm for nullification is more based on right power reject applied permit the law as to the facts if its conscience will not it to 1298-1299.) (Christie, op. supra, pp. follow the court’s instruction. cit. fn. *47 (1st v. Spock United States a to In nullify. into stifling spontaneous urge the trial because 1969) F.2d were reversed Cir. the convictions concerning questions” court had asked the to answer several jury “special felt that proce- The court the various elements of the crimes charged. it on its infringed power to undue because
dure amounted judicial pressure reasons. “There it by to arrive at a verdict without to general having support force, than to reach, a verdict of guilty, is no easier to way perhaps be ca- formally may A by wishing acquit, approach step step. juror, seems to a each of which require techized. By progression questions defendant, be led to vote may reluctant juror answer unfavorable to the which, may The result for a conviction he would have resisted. the large, has been initiated but the course by a accomplished majority jury, (Id. of the and directed him the frame by judge, through questions.” at p. a sick nullification not as is that it considers point Spock jury value which must
doctrine that has but as a days, occasional good positive not be smothered by gimmicks. procedural said, view I have I relatively benign
As do not share the lead opinion’s however, it could of defendant’s crime. The did. It asked whether put jury, “no” its effect. The court said assessment defendant’s into culpability when the correct Under the circumstances answer was plainly “yes.” error calls for clearly a reversal. me, a knotty
If three of we would face my problem colleagues agreed murder? Modif- to second degree Reversal? Modification disposition: would be. ication answer I am not sure what the manslaughter? proper circumstances, however, the only practical Under the I am convinced that I so concur. solution for me is to concur in the reduction of degree.
KINGSLEY, Mosk’s I concur Justice opinion. J.* Kaus on the Justice
I have read with interest the scholarly opinion nullification,” any- doctrine has but do not that that agree subject “jury nullification” is of “jury to do with the case at bench. The thing concept and administer of the law one that letter jury ignore permits plain more the socially appropriate what those as a persons, body, regard Dean Pound called what verdict in a case. The doctrine particular represents law, in a case the law to yield special a “soft in the which permitted spot” law in general. rather than cast doubt on the justice applicable * Assigned by Council. Chairperson of the Judicial
Here, however, the of the court is not the law. The majority ignoring constitutional is, itself, cruel and unusual provision against punishment vital of the law which we part in the case of Mr. Dillon. It young apply now settled that that in both the federal and California provision Constitu- tions prohibits of an otherwise valid sanction to a application particular under person We the law of particular ignoring circumstances. are not Cal- ifornia; we are applying whole law.
BIRD, J.,C. in Justice Mosk’s for the court. Concurring. I join opinion However, I write separately today’s decision still leaves emphasize unresolved some important to the rule. challenges felony-murder the first
Although rule in this state to be a degree felony-murder appears (ante, “creature of statute” at 463), this cannot be said for second p. degree observes, murder. As Justice felony Mosk’s “the second degree opinion remains, felony-murder rule it been as has since a doc- judge-made (Ante, trine without basis the Penal Code . . . at any express p. 19.)
fn. This court has criticized the rule a felony-murder repeatedly “highly artificial” and “barbaric” which “not ‘erodes the relation only concept between criminal and moral but unnec- liability usually also culpability’ essary (See for conviction . . . .” 64 Cal.2d Phillips People 582, 583, fn. 353]; 414 P.2d v. Satchell Cal.Rptr.
6 Cal.3d 489 P.2d 50 A.L.R.3d This court is by statute from the “unwise” and “outdated” precluded abrogating (ante, first which degree felony-murder 463), rule at but there is nothing p. this court from doc- the second prevents reassessing degree felony-murder trine. In view of the court have leveled against criticisms this and others decade, the rule over the hand for away the time seems to be at past doing with that of the “barbaric” which we are portion anachronism responsible for. creating.
Moreover, rule, are a num- as to the first there still degree felony-murder ber of court. As the that have not been decided open questions notes, individual majority the rule a wide opinion range encompasses (Ante, With to those felons who come within culpability. regard ambit—i.e., its and mal- those who kill and with deliberately premeditation ice in the course of the degree felony-murder enumerated felonies—the first rule is be convicted of first degree These individuals would superfluous. route, murder the traditional regardless malice-plus-premeditation existence or nonexistence of the rule. felony-murder unnec-
The elimination murder is also felony of the element of malice for who, to obtain in the course of essary the conviction of those felons or felonies, without premeditation kill but intentionally enumerated degree prob- involving high death “an intentional act cause a through base, death, anti-social done for which act is that will result ability act human life.” Such persons with a for disregard wanton purpose rev.).) 188; (1982 Code, No. 8.11 (Pen. with malice. CALJIC § rule Thus, actual of this first only consequence ac- unintentionally a death mete out to certain who cause is to persons mur- society premeditated which cidentally punishment prescribes and federal Constitu- the state der. Serious remain as whether questions in the ab- to exact such extreme punishment tions permit government malice. harbored sence of that an accused deliberated or proof upon conviction except The Constitution the accused against “protects to constitute necessary fact beyond every reasonable doubt proof *49 crime U.S. 364 (In (1970) with which he re 397 Winship is charged.” 368, 375, 1068].) correctly Today’s opinion L.Ed.2d 90 S.Ct. majority [25 the crime of first degree holds that the definition” of statutory “substantive (Ante, at an element. murder in not include malice as felony this state does However, the Con- 475.) mean that necessarily this conclusion does not p. a killing to be based on
stitution a first murder conviction permits where an accused harbored no malice. element of every doubt of reasonable
Winship requires proof beyond
murder,
has broader implications.
but
of the
decision
language
Winship
a reasonable
beyond
to
due
According Winship,
requires proof
process
(
The exact has location these 3.) fn. (But fined in cases. see post, subsequent far, thus com- this issue
While the has to avoid managed Court Supreme Some theoretical discussion. fertile ground mentators have found it a necessary as Legislature have that those facts argued merely specified criminal a reasonable justify particular sanction must proved beyond (See, Underwood, doubt. The on the Justice: Burdens e.g., Thumb Scales 1299.) Persuasion Criminal Yale L.J. Others have Cases criticized this formalistic1 and have that Win- approach overly suggested reasonable doubt of certain ship’s standard must be tied to a recognition constitutional limitations on the to define substantive Legislature’s power (See, crimes. Jeffries & cit. 88 Yale L.J. at e.g., supra, Stephan, op. 1365-1366; Allen, in Criminal Cases: pp. Jury Decisionmaking Structuring A Devices Evidentiary Constitutional Approach Unified (hereafter, Allen).) Harv.L.Rev. 342-343 authors contend These the state should be a reasonable doubt fact every required prove beyond which is In constitutionally to establish the accused. necessary guilt conjunction this there is an asserted need for a constitutional argument, doctrine to the substantive criminal law which defines minimum applicable for the requirements of the criminal sanction. It is imposition suggested the constitutional basis for such a doctrine be found within notions of may substantive due cruel and/or unusual process, equal protection, punishment, Note, (See or some combination all Constitutionality three. of Af- Patterson v. New York 78 Colum.L.Rev. firmative Defenses After 655, 669-672; Allen, cit. 94 Harv.L.Rev. at op. supra, What the exact contours of doctrine are another matter. The two *50 most mentioned constitutional limitations on substantive criminal frequently (see law are a & op. constitutional doctrine of mens rea Jeffries Stephan, 1371-1376; Packer, cit. 88 Yale L.J. at Mens Rea and the Su- supra, pp. Court, 148-149; 107, preme 1962 Ct. Rev. Unconstitu- Hippard, Sup. Criminal An a Constitu- tionality Liability Argument Without Fault: of for 1039) (1973) tional Doctrine Rea 10 Houston L.Rev. and the Mens of in criminal Amendment’s of Eighth punish- requirement proportionality observe, trying justice in exclu Stephan 1As Jeffries and trouble lies in to define “[t]he thought sively procedural Winship’s standard is terms. insistence on the reasonable-doubt express risking conviction of the preference letting guilty go a for free rather than choice, however, purely procedural con implemented innocent. This value cannot be a concepts. Their content proof. cern with burden of Guilt and innocence are substantive uncon depends liability. on the choice is remitted to choice of facts determinative of If this discretion, potential legislative procedure can restrain the strained no rule of constitutional account not injustice. ‘innocent’ must take into principle protecting A normative for proved. of facts to be only certainty with which are but also the selection facts established grounded must be policy convicting A the ‘innocent’ constitutional to minimize the risk ’ ‘guilt’ would have may ‘guilt. in a Otherwise conception constitutional of what constitute ‘guilt’ pleased, as it proved certainty, legislature to be but the could define (Jeffries promise.” & Ste grand liberty empty of individual reduced to an ideal would (1979) Yale Defenses, the Criminal Law 88 phan, Presumptions, and Burden of Proof 1325, [hereafter, Stephan].) L.J. 1347 & Jeffries
497 (See ment.2 Jeffries & cit. Yale L.J. at 1376- op. Stephan, supra, pp. 1379; Wheeler, see Limited Punishment: An generally Theory Toward a 838; Note,
Examination
L.Rev.
(1972)
Amendment
Stan.
Eighth
(1979)
Colum. L.Rev.
Disproportionality
Sentences
Imprisonment
—
—
1119;
637,
see also
103 S.Ct.
(1983)
Solem Helm
U.S.
L.Ed.2d
[77
3001]; United
(1910)
States v. Weems
217 U.S.
L.Ed.
349 [54
544];
(1972)
S.Ct.
In re
503 P.2d
Lynch
If either source for such a the doctrine of mur- theory felony adopted,3 (See der as a rule of substantive criminal law is vulnerable. Jeffries highly Comment, 1383-1387; & cit. op. 88 Yale L.J. at Con- Stephan, supra, pp.
stitutional Limits Criminal and the Upon Statutory Presumptions Use of Felony-Murder 1037-1040.) Rule Since the rule 46 Miss.L.J. as murder without a
punishes any the course of a killing felony showing result, of a mental state with to that its continued culpable respect applica- tion would conflict with constitutional mens impermissibly requirement rea.4 (88 Stephan 2Jeffries and suggest requirement also a constitutional of an actus reus. Yale 1370-1371.) notes, however, pp. may
L.J. at
requirement
As Professor Allen
the actus reus
large part
be viewed in
establishing culpable
as an aid in
mental state to a sufficient
(See
343-344,
certainty.
83.)
pp.
94 Harv.L.Rev. at
fn.
Supreme
3The
Court’s recent decision in Sandstrom v. Montana
498 that,
Moreover, when at be violated one considers may proportionality rea, are in reality least in the absence of a of mens defendants showing Two situ felony. similarly for the commission of the underlying punished based on the ated felons receive may grossly punishments disproportionate in one that a unintended and death occurred fortuity totally nonnegligent .5 also Lockett v. Ohio (1978) 438 U.S. 620 (See case but not the other Marshall, 973, 999, J.).) (conc. L.Ed.2d 98 S.Ct. opn. [57 2954] which, wholly beyond proved, if not would a reasonable doubt is not to those facts ‘limit[ed] accused). a thief is entitled to system justice exonerate’ the Under our of criminal even burglar.” complain unconstitutionally imprisoned he as a that has been convicted the prosecution culpable respect mental under proves Once the defendant’s state felony lying felony, culpability punishable by that level attached to the itself. is sanction rule, punishment felony-murder imposition The of severe additional which mandates any showing culpability, properly without is characterized as a strict of additional mental liability concept blatantly law unconstitutional if Con concept. criminal It is a which is showing culpable of a prohibits imposition punishment stitution of criminal without Taylor noted in respect mental state with to the achieved. As Justice Mosk dissent result Superior P.2d “Funda Cal.Rptr. Court 3 Cal.3d 131]: 593 [91 subject greater be to a principles responsibility mental of criminal dictate that the defendant ignore To that rule penalty only greater degree culpability. when he has demonstrated and at worst to risk constitutional purpose punishment, is best frustrate deterrent ground invalidation on the of invidious discrimination.” could be protection challenges which spectre equal 5This raises the of the multitude of Comment, (See Constitutionality The against applications leveled rule. 356, 382.) A Imposing Penalty Felony the Death Murder 15 Houston L.Rev. People by way Appeal In v. Fuller prime example appears of a recent Court of case. 515], degree felony charged with first Cal.App.3d Cal.Rptr. defendants were burglary they during escape from murder after were involved in a fatal traffic accident a trial court grudgingly The reversed unoccupied of an vehicle on an auto dealer’s lot. court Relying holding v. Salas dismissing order the murder count. on our 832], Appeal Court of P.2d 58 A.L.R.3d Cal.3d safety,” burglary temporary burglars “place that had not reached a reasoned since occurred, felony-murder rule. fatality allowing application of the ongoing when the thus (86 623.) Cal.App.3d p.at occurred, during which the death escape, that the problem application The with such an have been felony. The felons could logical underlying had no connection to the nature of the Although Appeal the Court of escaping any from the scene of crime with identical results. otherwise, application of the doctrine suggested compelled past felt cases to hold enlight- more represents inherently dangerous burglaries. While should limited view, totally underlying crime is nature of the point. ened it misconceives the crucial In which must be deterred. during escape dangerous irrelevant. It is the felon’s conduct Fuller, (reckless charges of vehic- already the defendants to driving) subjected conduct (86 theory. murder on a reckless manslaughter possibly second murder ular Cal.App.3d p.at charge and a degree murder utterly to a first subject It is irrational to some defendants (or manslaughter indeed only with vehicular charged while are possible death sentence others nature of the solely on the grossly negligent) based if their conduct was not no crime at all *52 236, (1976) Moreover, Cal.3d People 17 in v. Olivas they escaping. crime from which are 55, punish- in criminal 375], recognized we that distinctions Cal.Rptr. 551 P.2d [131 subject to liberty and are thus personal ments affect the citizen’s fundamental interest grossly imposing compelling interest scrutiny. surely can claim no judicial strict state escaping kidnapers es- to burglars opposed as disproportionate punishment escaping on escapes. during such deaths which occur caping thieves for unintended It is certainly that the cruel or unusual possible analysis punishment today’s majority will the lines these opinion along suggested by develop authorities. Time will tell. I write out that there separately merely point are unresolved constitutional have to issues which this court may pass upon sooner or later. Concurring Dissenting.
RICHARDSON, J., I concur with fully (1) the majority insofar as it affirms defendant’s conviction (2) attempted robbery, sustains the of the first constitutionality Code, degree felony-murder (Pen. rule. 189.) §
I dissent, however, respectfully that, from the conclusions as majority’s defendant, applied of life penalty imprisonment possibility parole constitutes cruel or unusual under the California Constitution punishment I,
(art. 17), and that must be modified to accordingly judgment § reduce view, the offense to second murder. In modification of degree my the judgment in reliance on the cruel or unusual clause constitutes punishment
an unwarranted invasion both of the to define powers Legislature clemency crimes and prescribe punishments, of the Governor to exercise and commute sentences.
We have long insisted that have courts do not “appellate power modify sentence or reduce the therein absent error punishment imposed in the proceedings. (People Cal.3d [Citation.]” Giminez Cal.Rptr. 65]; 534 P.2d [120 see v. Odle 37 Cal.2d People 52, 57 P.2d 345].) Use of such a would [230 courts power appellate constitute an exercise of “clemency similar to those vested in the powers separation . . . governor and raise serious constitutional to the questions relating (Odle, of powers.” 58.) And p. although truly disproportionate sentence constitute may “error” which would invoke our limited power vacate or reduce (see a sentence v. Frierson 25 Cal.3d nevertheless, 182-183 587]), 599 P.2d I will Cal.Rptr. as explain, this defendant’s sentence of life with cannot possibility parole reasonably be deemed to his offense of first murder. disproportionate
We have defined “cruel or unusual under the state Constitution punishment”
as one which is “so to the crime for which it is disproportionate inflicted that it shocks the conscience and offends fundamental notions of (In human dignity.” re Lynch 8 Cal.3d 921], here,
503 P.2d fn. omitted.) The itself punishment majority is an acknowledges, enhanced base term of for the only years prison Moreover, murder which he (Ante, committed. he may fn. well be released on at a parole much earlier date if the Board of Prison Terms *53 Code, (Cal.
finds Admin. tit. sufficient circumstances mitigation (id., 2284), 2290). or if defendant earns available credits postconviction § § It is conceivable that be after seven serving only defendant could paroled Code, (Pen. that a term 3046.) Can it said years prison. reasonably § from 7 to 20 is “cruel or unusual ranging years punish- probably prison ment” for the first murder of which he was convicted? Emphatically not.
The
in their Constitution that
of this state have
sovereign people
provided
constitute,
be,
“The death
.
or to
penalty
. . shall not be deemed
Const.,
I, 27,
(Cal.
art.
infliction of cruel or unusual
. . . .”
punishments
§
offenses,
added.)
italics
the time of his
defendant
But
his
age
with life
herein could have been
with the death
charged
penalty
impris-
190.5;
Code,
v. Davis
(See
onment without
Pen.
parole.
§
If
the in-
The his lack of a immaturity, stresses defendant’s his majority youth, record, in this case criminal and the fact that “The shooting asserted prior (Ante, 488.) . . . .” to a situation response suddenly developing Each the Board of Prison of these factors be considered properly may Code, Admin. tit. (Cal. Terms in defendant’s date. determining parole not, however, us one whit in measuring do assist They §§ murder. constitutional of a “life” for first degree sentence propriety a mere “re- benign mild characterization of the majority’s killing record, little in the to a situation” finds suddenly support sponse developing this is the I read record: Defendant had attempted way previously the con- invade some of seizing for the marijuana plantation purpose traband. He owners and was forced to retreat. met armed resistance He was foray. going “get He his second carefully thereupon planned They three other friends. even.” He and a friend each to recruit planned for har- ready would be chose the month of October because the marijuana themselves, he would saying Defendant told the to arm vesting. gang He rejected .410 he needed ammunition. his and .22 rifles but that bring fire, they one one diversionary telling companion start proposal out, hold him up, came we would just should there. If the “just go up guy hit him over the head or Tie him to tree.” something. of the crew assembly and time of
The time of the and place departure one of Six of the persons, were Defendant a map. agreed upon. prepared shells, shotgun pa- rendezvoused and obtained them armed with a shotgun, *54 containers, to be used or bags as masks and for per diagonal pliers nipping Then, the buds. and still marijuana met defendant prearrangement, they another a a Defendant had .22 rifle and was person, making party eight.
handed some Two of another ammunition. the others carried shotguns, bat, a grabbed baseball still another had wire cutters and a brought pocket knife. Defendant also some to be the up carried used either rope tying marijuana or one of men their intended victims. The tore some young up masks, old sheets and fashioned off them into obtained fight sticks then, and dogs, of the raid. use reviewed final for the map, plans At this defendant point loaded his rifle. He was not rabbits! hunting
The men into either three or four for their final split separate groups approach field marijuana from different directions. Defendant three other companions heard someone Two of the coming trail. up party hid. or, crouched, stood, Defendant either remained then standing having bushes, and as the victim from emerged defendant fired at him point blank at a distance of 10 to feet. The victim did not gun his point defendant and no words rifle that were Defendant’s its exchanged. required trigger each pressed time bullet fired. A separately subsequent was autopsy victim’s revealed nine bullets had found their mark. body Defendant knew he what was He for exactly doing. carefully had prepared this ultimate culmination his lethal plans. indeed,
There was nothing about under circum- unplanned killing; above, stances recited an armed confrontation with tragic ap- consequences rule, almost peared inevitable. The ho- any specifying micide occurring or a rob- during perpetration attempted perpetration bery murder, is first degree argument to foreclose clearly designed any regarding the actor’s lack of Yet it is premeditation planning. precisely such argument that the when defen- majority reduce accepts agrees dant’s sentence to second murder. degree
None of the on by majority cases cited relied disproportionality 410, In here. re an in- apposite Lynch, 8 Cal.3d held excessive supra, determinate life-maximum second sentence for a offense indecent expo- In re sure. Foss 10 Cal.3d Cal.Rptr. 917-929 [112 1073], P.2d and In re Grant 18 Cal.3d 5-18 Cal.Rptr. [132 590], 553 P.2d struck down legislation drug recidivist offenders barring from consideration re 14 Cal.3d parole years. In Rodriguez 384], 653-656 537 P.2d mandated release a nonviolent child who for 22 molester had been None imprisoned years. offenses, cases, these which minor a chal- involved relatively supports to a 7- to first
lenge probable 20-year “life” sentence for a murder.
In Enmund
102 S.Ct.
v. Florida
As Enmund a should be defendant’s explains, punishment L.Ed.2d (458 moral U.S. at responsibility guilt.” p. personal 102 S.Ct. at Defendant p. personally responsible p. for, of, in the a attempted perpetration homicide committed morally guilty older, defendant, could have year of a had he been robbery. Although without reason of been to death or life sentenced imprisonment parole, he A 7- to 20-year his received a far less sentence. youth probable severe Any “life” for a deliberate killing. sentence is modest treatment very penal further should rest with the Governor. clemency
I would affirm the judgment entirety. its Concurring Dissenting.
BROUSSARD, J., part majority
I concur in I of the opinion, properly jury which holds that the trial court instructed the on the attempted robbery. join part II, crime of I also in which overturns the common standing crop subject larceny law doctrine that a cannot be the robbery. Finally, agree principle part majority opinion; I IV of the codifying felony-murder a statute the common law rule would not violate by conclusively presuming the state or federal Constitutions malice. on however, “inference III majority
In of their pile part opinion, Code that Penal (ante, 19) fn. reach the conclusion inference” the commission that a killing during section 189 codifies the common law rule of malice. proof without requiring is considered be murder felony however, persuades of section The account the history majority’s me to a conclusion. contrary felony-murder California had two
As the majority explain, common law felony-murder statutes: former section which codified rule; of the murder. the degree and former section which fixed (now but 189) 1872 Penal Code reenacted section 21 renumbered as omit- § ted section 25. (It
We do not know 25. failed to reenact section why Legislature seems fanciful to trace comment that failure to mistaken attempt statute.) Code It possible Commissioners their discussion of an arson that the intended to reenact the law rule Legislature common and failed inadvertence But the fact remains that the through or oversight. rule, did not
Legislature reenact that but statute which only retained fixed the of the murder. statute,
I not do believe the can of section language degree-fixing *56 reasonably be felony-murder construed to the common law rule. encompass As the of section 189 derives from majority carefully explain, language 21 former section and similar in clearly enactments other states—enactments intended to serve the function of between first and solely distinguishing second of degree murder. The current section 189 reflects this wording It limited not a to a purpose.1 felony—the does refer to killing perpetrate of the subject common law rule—but to a “murder” to six perpetrate murder, moreover, In specific felonies.2 of the section 189 fixing degree felonies, not only includes in but murders of listed also perpetration wait, those by committed A in or torture. explosive, poison, lying killing means, however, committed such is not murder without of malice. proof 185, 177, v. Mattison 4 (People 481 Cal.3d 182-184 Cal.Rptr. [93 193].) P.2d There is no reasonable to read the of section 189 way language to make killings of six felonies murder without perpetration listed malice, of but proof to in that malice all other described require killings section.
I conclude that the rule felony-murder remains and judge-created judge- common preserved law. It is therefore within the of this court to power (See 333, overturn that rule. v. Drew 347 People Cal.3d [149 275, matter, 1318].) we to that we P.2d If were consider Cal.Rptr. 1Section 189 perpetrated by reads follows: “All murder which is means of a destructive explosive, penetrate
device or to knowing designed primarily use of ammunition metal or armor, willful, deliberate, wait, torture, poison, lying any pre of and or other kind of, killing, attempt perpetrate, meditated or which the perpetration is committed in or to arson, 288, rape, robbery, burglary, mayhem, any under Section is murder punishable act degree; of degree. the first and all other kinds of murders are of second ...” 189, the majority’s 2Under degree felony-murder construction of section second “the rule remains, as it judge-made any express has been since doctrine without basis in the (Ante, Penal felony-murder Code . . . .” Both fn. the common law rule and 25, however, murder, former provided perpetrate felony section killings that all were distinguishing felony-murder without rule degree of the murder. If the second judge-made Legislature fully has not been rule it follows that the 1872 did since codify the law common rule. have
would numerous of this court upheld have to that decisions recognize (See, rule. 8 Cal.3d People that v. Cantrell applied e.g., 1256]; v. Burton Cal.3d 504 P.2d Cal.Rptr. (Some, without the 387-388 P.2d written have assumed the mistakenly historical guidance majority’s analysis, on those deci- rule was The has relied statutory.) undoubtedly Legislature This long-contin- sions other considering enacting penal legislation. heav- weigh ued reliance would pattern judicial precedent legislative rule, offset the ily against felony-murder log- repudiation serving rule about. But brings ical weakness of that and the occasional inequities moots conclusion rule is that statutory majority’s issue. The statutory punishment
I dissent V the majority also part opinion. constitutionally dispro- is not life parole imprisonment possibility is it excessive under murder. Neither to the crime first degree portionate of this murder. the circumstances particular other youths defendant before and recruited robbery us planned resistance, him. The to meet armed help would-be robbers expected resistance, to overcome themselves accordingly. and armed
planned *57 defendant, he he had When as have met armed anticipated, guard must nine encountered on two defendant shot times. forays, guard previous the same defendant he shot and from Although panic, claims impulsively record, well defendant is be true of adult murderers. On may many as the adult felony-murder defendant—perhaps equally culpable typical so, and knew he more defendant instigator robbery since was the robbery. would have to to consummate the probably use his weapon course, state, defendant every The does not have to punish It that certain may maximum extent the Constitution. decide permitted rehabilitation, and that severe punishment defendants are good prospects be one who before us may would interfere with defendant goal. But whether from a commitment. the decision would benefit rehabilitative for commit- create and who eligible rehabilitative should programs, So long ment decision. essentially legislative under those programs, of the crime to the gravity does not Legislature punish disproportionately offender, treatment or its to extend lenient and the refusal culpability murder first to offer rehabilitative to those convicted programs I therefore affirm cruel would does not constitute or unusual punishment. defendant. judgment against denied October 1983. for a Respondent’s petition rehearing Richardson, J., should be granted. was of the opinion petition