Supreme Court of California Justia
Docket No. S111341
People v. Billa

Filed 11/24/03


Plaintiff and Respondent,
) Ct.App.
Defendant and Appellant.
Super. Ct. No. R47469

Defendant conspired with two others to commit arson of his truck for
purposes of insurance fraud. All three conspirators were present at the scene of
the burning. While committing the arson, one of the conspirators caught fire and
burned to death. We must decide whether defendant is guilty of murdering that
coconspirator under the felony-murder rule. We conclude, as did the Court of
Appeal, that the felony-murder rule applies to all arsonists at the scene of the
arson. In so doing, we distinguish People v. Ferlin (1928) 203 Cal. 587 (Ferlin),
which held that the rule does not apply to a conspirator who was never at the
scene. We leave for another day the question whether Ferlin was correctly
decided on its facts.
The prosecution presented evidence from which the jury could reasonably
find the following. Defendant purchased a truck and insured it for physical
damage. On August 26, 1997, defendant and two others, including Manoj

Bhardwaj, drove from Yuba City towards Sacramento, with defendant and
Bhardwaj in defendant’s truck and the third person following in a car. They
intended to burn defendant’s truck and obtain the insurance proceeds. Near
Wheatland, defendant drove his truck onto a gravel road and stopped about two-
tenths of a mile down the road around a bend. There the three set the truck on fire,
using either kerosene or diesel fuel.
During these events, Bhardwaj’s clothing somehow became saturated with
the fuel. It is not clear exactly what happened, but evidence suggested he might
have held a leaky canister of the fuel on his lap during the drive. While the three
were setting the truck on fire, Bhardwaj’s clothing caught fire, and he was
severely burned. He died later of his injuries.
A jury convicted defendant of the second degree murder of Bhardwaj (Pen.
Code, §§ 187, 189),1 arson causing great bodily injury (§ 451, subd. (a)), and
making a false or fraudulent insurance claim (§ 550, subd. (a)(4)). The trial court
had instructed the jury solely on the felony-murder rule as a basis for finding
defendant guilty of murder. The Court of Appeal modified the judgment and
affirmed it as modified. It held that defendant was properly convicted of
Bhardwaj’s murder under the felony-murder rule. We granted defendant’s petition
for review to decide whether the felony-murder rule applies on these facts.
“All murder . . . which is committed in the perpetration of, or attempt to
perpetrate, [specified felonies, including arson] . . . is murder of the first degree.”
(§ 189.)2 This felony-murder rule covers “a variety of unintended homicides

All further statutory references are to the Penal Code.
Although the prosecution proceeded on a felony-murder theory with arson
the underlying felony, it only sought conviction for second degree murder,


resulting from reckless behavior, or ordinary negligence, or pure accident . . . .”
(People v. Dillon (1983) 34 Cal.3d 441, 477.) We must decide whether it includes
the unintended death of one of the perpetrators during the commission of arson.
Two overarching principles guide us. First, “we are not concerned here
with the wisdom of the first degree felony-murder rule itself, or with the
criticisms—and defenses—directed at it by judicial and academic commentators;
section 189 is the law of California, and we are not free to ignore or alter it if we
would.” (People v. Pulido (1997) 15 Cal.4th 713, 724.) Second, “[n]evertheless,
when the rule as ordained by the Legislature requires detailed delineation, this
court properly considers policy and consistency. In particular, we have held the
first degree felony-murder rule ‘should not be extended beyond any rational
function that it is designed to serve.’ ” (Ibid., quoting People v. Washington
(1965) 62 Cal.2d 777, 783.)
Analysis of this question must begin with Ferlin, supra, 203 Cal. 587. In
that case, the defendant hired Skala to commit arson and purchased gasoline used
in the arson, but he apparently did not otherwise actively participate in the crime
and was not present at the scene of the arson. Skala burned to death while
committing the arson. (Id. at p. 590.) We held that the defendant was improperly
convicted of felony murder. “It would not be seriously contended that one
accidentally killing himself while engaged in the commission of a felony was
guilty of murder. If the defendant herein is guilty of murder because of the
accidental killing of his co-conspirator then it must follow that Skala was also
guilty of murder, and if he had recovered from his burns that he would have been
guilty of an attempt to commit murder.” (Id. at p. 596.) “It cannot be said from

possibly, as the Court of Appeal suggested, “out of a belief that a charge of first
degree murder would be unduly harsh under the circumstances . . . .”

the record in the instant case that defendant and deceased had a common design
that deceased should accidentally kill himself. Such an event was not in
furtherance of the conspiracy, but entirely opposed to it.” (Id. at p. 597.)
Several Court of Appeal cases have followed Ferlin under similar facts. In
Woodruff v. Superior Court (1965) 237 Cal.App.2d 749, the defendant procured
another to burn defendant’s cafe but was not present at the actual burning. The
other person died in the arson. (Id. at p. 750.) The court described the question as
“whether a person who aids, counsels or procures another to maliciously set fire to
a building, but who is not physically present at the scene of the arson, is guilty of
murder when his confederate negligently or accidentally burns himself to death
while setting the fire.” (Ibid.) It followed Ferlin in concluding the felony-murder
rule did not apply. (Id. at pp. 750-752.) In People v. Jennings (1966) 243
Cal.App.2d 324, three persons, including the defendants, hired another to burn a
building for insurance purposes. That person caught fire himself while setting the
fire and died later. (Id. at pp. 326-327.) The Court of Appeal also found no
liability for felony murder. (Id. at pp. 327-329.)
In People v. Earnest (1975) 46 Cal.App.3d 792, the defendant conspired
with Munoz to burn defendant’s house for the insurance proceeds. “Munoz, acting
alone, attempted to set fire to the then unoccupied home, an explosion occurred
and Munoz was killed.” (Id. at p. 794.) The court also found no felony-murder
liability. “It is settled California law that where, as here, an accomplice in a
conspiracy to commit arson for the purpose of defrauding an insurer accidentally
burns himself to death, his co-conspirators may not be charged with murder under
the felony-murder rule.” (Ibid.) The court interpreted Ferlin and its progeny as
“clearly express[ing] the rule that the accomplice’s accidental self-destruction is
not in furtherance of the common design. It is not the fact that the accomplice
killed himself that precludes application of the theory of vicarious responsibility,

but the fact that his was the sole human agency involved in his death.” (People v.
Earnest, supra, at pp. 796-797.)
We have not confronted similar facts since Ferlin, supra, 203 Cal. 587, but
we have cited that case a number of times. In the landmark decision of People v.
Washington, supra, 62 Cal.2d 777, we held that the robbery felony-murder rule
does not apply when someone other than a robber, such as the police or a victim,
does the killing. We cited Ferlin for the proposition that “for a defendant to be
guilty of murder under the felony-murder rule the act of killing must be committed
by the defendant or by his accomplice acting in furtherance of their common
design.” (People v. Washington, supra, at p. 783.) In People v. Antick (1975) 15
Cal.3d 79, we held that one robber cannot be vicariously liable for the death of an
accomplice due to the deceased robber’s actions because people cannot murder
themselves. We discussed Ferlin and said its “holding was aptly explained by the
Court of Appeal in Woodruff v. Superior Court (1965) 237 Cal.App.2d 749: ‘We
believe the rationale of that decision to be that section 189 was inapplicable
because there was no killing by the accused felon and no killing of another by one
for whose conduct the accused was vicariously responsible. . . . [I]n Ferlin “the
coconspirator killed himself while he alone was perpetrating the felony he
conspired to commit” and “it was held in substance and effect that inasmuch as
[deceased] killed himself Ferlin could not be held criminally responsible for his
death.” ’ (Id. at p. 751.)” (People v. Antick, supra, at p. 89.) More recently, we
cited Ferlin for the proposition that to be guilty of murder for a killing attributable
to the act of an accomplice, “the accomplice must cause the death of another
human being by an act committed in furtherance of the common design.” (People
v. Caldwell (1984) 36 Cal.3d 210, 217, fn. 2.)
Defendant argues primarily that Ferlin, supra, 203 Cal. 587, and its
progeny are on point here: Bhardwaj killed himself, and his death was not in

furtherance of the conspiracy but entirely opposed to it. In deciding this question,
we must consider the purpose behind the felony-murder rule, for we have said the
rule should not be extended beyond its purpose. (People v. Pulido, supra, 15
Cal.4th at p. 724.) The rule’s primary purpose is “to deter felons from killing
negligently or accidentally by holding them strictly responsible for killings they
commit.” (People v. Washington, supra, 62 Cal.2d at p. 781; accord, People v.
Pulido, supra, 15 Cal.4th at p. 725; People v. Hansen (1994) 9 Cal.4th 300, 310.)
In Washington, we found this purpose not applicable when a third person kills a
robber. “This purpose is not served by punishing [felons] for killings committed
by their victims.” (People v. Washington, supra, at p. 781.) However, here no
third person killed Bhardwaj. Making arsonists guilty of murder if anyone,
including an accomplice, dies in the arson gives them an incentive to do whatever
is necessary to make sure no one dies. Defendant argues that felons already have a
natural incentive not to kill themselves or their accomplices while committing
their crimes. To the extent this is so, making felons strictly liable for deaths
maximizes this incentive, thus furthering the purpose of the felony-murder rule.
The felony-murder rule applies to the death of a cohort as much as to the
death of an innocent person. (People v. Johnson (1972) 28 Cal.App.3d 653, 656-
658 [defendant’s gun discharged, apparently accidentally, killing an accomplice
who was running towards one of the victims; felony-murder rule applies]; People
v. Cabaltero (1939) 31 Cal.App.2d 52, 55-56 [one accomplice shot and killed
another accomplice, apparently out of anger that that accomplice had fired his gun;
felony-murder rule applies]; see also People v. Washington, supra, 62 Cal.2d at p.
780 [rejecting a distinction between the death of an accomplice and the death of an

innocent person].)3 Defendant cites language in People v. Jennings, supra, 243
Cal.App.2d at pages 328-329, that the felony-murder rule exists to protect the
public, not to benefit lawbreakers. Jennings, in turn, cited People v. Chavez
(1951) 37 Cal.2d 656, 669, where we said that section 189 “was adopted for the
protection of the community and its residents, not for the benefit of the
lawbreaker . . . .” But we said the felony-murder rule does not benefit lawbreakers
in order to extend the rule; we did not suggest it fails to protect lawbreakers.
(People v. Chavez, supra, at pp. 669-670.) One may have less sympathy for an
arsonist who dies in the fire he is helping to set than for innocents who die in the
same fire, but an accomplice’s participation in a felony does not make his life
forfeit or compel society to give up all interest in his survival.
One rationale of Ferlin and its progeny is that the accomplice’s death “was
not in furtherance of the conspiracy, but entirely opposed to it.” (Ferlin, supra,
203 Cal. at p. 597.) This reasoning is flawed.4 The death of the accomplice in
People v. Johnson, supra, 28 Cal.App.3d 653, and possibly also People v.
Cabaltero, supra, 31 Cal.App.2d 52, was similarly not in furtherance of the
conspiracy in the sense that the death harmed the conspiracy. Nevertheless, the
courts found felony-murder liability in those cases. As the Attorney General

People v. Cabaltero, supra, 31 Cal.App.2d 52, has been criticized for
reasons not relevant here but never overruled. (See People v. Pulido, supra, 15
Cal.4th at p. 722, fn. 2.)
Ferlin, supra, 203 Cal. 587, was also incorrect in another part of its
analysis, although one not critical to its conclusion. It stated that if the defendant
were guilty of Skala’s murder, then Skala must also be guilty of murder, “and if he
had recovered from his burns . . . he would have been guilty of an attempt to
commit murder.” (Id. at p. 596.) The reference to attempted murder is incorrect.
California has no crime of attempted felony murder. (People v. Bland (2002) 28
Cal.4th 313, 328; see also People v. Mize (1889) 80 Cal. 41, 43 [attempted murder
requires specific intent to kill].)

argues, there is a difference between acts done in furtherance of the conspiracy
and the results of those acts. We have said that the “act of killing” must be in
furtherance of the conspiracy. (People v. Washington, supra, 62 Cal.2d at p. 783,
italics added.)5 But the result need not further the conspiracy. (See People v.
Schader (1965) 62 Cal.2d 716, 731 [the “death must result from an act committed
in furtherance of the robbery or the escape from such robbery”].) In this case, all
three conspirators, including Bhardwaj, were acting in furtherance of the
conspiracy, including committing the acts that resulted in Bhardwaj’s death.
Although the unintended result—Bhardwaj’s death—was opposed to the
conspiracy, the acts causing that result were in furtherance of it. One can
hypothesize many killings that harm a conspiracy—killing the only person who
knows the combination to a safe, for example—but felony-murder liability would
extend to such a killing. People v. Washington, which found no felony-murder
liability for killings by third persons, is distinguishable in this regard. “When a
killing is not committed by a robber or by his accomplice but by his victim, malice
aforethought is not attributable to the robber, for the killing is not committed by
him in the perpetration or attempt to perpetrate robbery. . . . Section 189 requires
that the felon or his accomplice commit the killing, for if he does not, the killing is
not committed to perpetrate the felony. Indeed, in the present case the killing was
committed to thwart a felony.” (People v. Washington, supra, at p. 781.) Here, no
third party contributed to the death. Bhardwaj’s death was attributable solely to
the arsonists’ acts in furtherance of the arson.

In People v. Pulido, supra, 15 Cal.4th at pages 721-722, we identified two
somewhat different lines of authority regarding the exact scope of accomplice
liability. As in Pulido, we need not reconcile or choose between these lines
because the result here would be the same under either.

Another rationale of Ferlin is that the victim killed himself. Defendant
would distinguish People v. Johnson, supra, 28 Cal.App.3d 653, and People v.
Cabaltero, supra, 31 Cal.App.2d 52, on this basis. He argues that in those cases,
an accomplice killed the victim; here Bhardwaj, like the victim in Ferlin, simply
killed himself. We disagree. Whether the deceased was solely responsible for his
own death is questionable even under Ferlin’s facts. After all, Ferlin hired the
deceased to commit the arson and procured the gasoline, acts that contributed to
the death. But even if Ferlin’s rationale applied to its facts, this case is different.
Although Bhardwaj may have played a more active role in his own death than did
the accomplice victims in People v. Johnson, supra, 28 Cal.App.3d 653, and
People v. Cabaltero, supra, 31 Cal.App.2d 52, he did not just kill himself. All
three conspirators, including defendant, were at the crime scene and active
participants in the events immediately causing his death. Ferlin’s connection to
his accomplice’s death was more attenuated than defendant’s connection to
Bhardwaj’s death.
We agree with the Court of Appeal’s assessment: “In this case, Bhardwaj
did not act alone in perpetrating the arson that was the cause of his death.
Defendant was present and an active participant in the crime. And his active
conduct was a direct cause of Bhardwaj’s death. In short, regardless of whether
the death was accidental or not, defendant’s act of arson killed Bhardwaj. Under
the circumstances, Ferlin is inapposite, and the felony-murder rule may be applied
to defendant’s conduct.” As the court pointed out, even if “there is no killing ‘of
another’ when an accomplice acts alone in causing his own death, there is a killing
upon which murder liability may attach when the defendant or other accomplices
actively participate in the events causing death.” We conclude that felony-murder
liability for any death in the course of arson attaches to all accomplices in the
felony at least where, as here, one or more surviving accomplices were present at

the scene and active participants in the crime. We need not decide here whether
Ferlin was correct on its facts.
Defendant argues that “any retroactive weakening of the Ferlin rule to
expand felony-murder liability would be unconstitutionally ex post facto.” We
disagree. “[A]n unforeseeable judicial enlargement of a criminal statute, applied
retroactively, operates in the same manner as an ex post facto law.” (People v.
Davis (1994) 7 Cal.4th 797, 811; see also People v. Blakeley (2000) 23 Cal.4th 82,
91-92.) In this case, however, we are not retroactively enlarging a criminal statute
but merely interpreting one. Ferlin and its progeny are factually distinguishable.
Our holding is a routine interpretation of existing law, not an overruling of
controlling authority or a sudden, unforeseeable enlargement of a statute.

We affirm the judgment of the Court of Appeal.


We note that Chief Justice George was outside California (attending a board meeting of
the national Conference of Chief Justices, of which he is currently president) when he
communicated his concurrence in this opinion by transmitting to the Clerk of the Court (at the
court’s chambers in San Francisco), by facsimile, a signed copy of the signature page of this
opinion indicating his concurrence. We conclude that the Chief Justice’s concurrence in the
opinion in this manner is valid, and that prior decisions of this court indicating that appellate
justices may participate in a decision only if they are physically within California at the time they
formally sign an opinion or order (see Cothran v. San Jose Water Works (1962) 58 Cal.2d 608,
612; People v. Ruef (1910) 14 Cal.App. 576, 623-632) are no longer persuasive and should be

Under the California Constitution, absent a waiver by the parties, appellate justices must
be present at oral argument in order to participate in the appellate decision and judgment (see Cal.
Const., art. VI, §§ 2, 3; Moles v. Regents of University of California (1982) 32 Cal.3d 867, 870-
874), but when justices are present at argument, nothing in the California Constitution or statutes
provides that they are disabled from participating in the appellate decision simply because they
are temporarily outside of the state at the time they communicate to the Clerk of the Court their
concurrence in a proposed opinion (or submit to the clerk a separate proposed opinion for
circulation to the other participating justices). In a multijudge appellate court, the operative act
that gives legal effect to an appellate court opinion or order is the formal filing of the opinion or
order by the Clerk of the Court. (See Cal. Rules of Court, rules 24, 29.4.) So long as the clerk is
authorized by the court to file the opinion or order, and the filing occurs in California, the legally
effective judicial act is performed in California. To the extent that the more restrictive rule set
forth in the early California cases cited above may have reflected the vagaries and unreliability of
the communication systems of the time, modern methods of communication have rendered such
concerns obsolete. (See, e.g., Gov. Code, § 5500 et seq. [Uniform Facsimile Signature of Public
Officials Act]; Civ. Code, § 1633.1 et seq. [Uniform Electronic Transactions Act].)

Contemporaneously with the filing of the decision in this case, we shall amend the
Internal Operating Practices and Procedures of the California Supreme Court to clarify the
procedures justices may utilize to communicate their vote on a matter pending before the court.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Billa

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 102 Cal.App.4th 822
Rehearing Granted


Opinion No.

Date Filed: November 24, 2003


County: Placer
Judge: Robert P. McElhany, Commissioner


Attorneys for Appellant:

Scott Concklin, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Jo Graves, Assistant Attorney General, Janet E. Neeley, Stephen G. Herndon
and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Scott Concklin
2205 Hilltop Drive, No. PMB-116
Redding, CA 96002
(530) 243-8510

David Andrew Eldridge
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-6291

Opinion Information
Date:Docket Number:
Mon, 11/24/2003S111341

1Billa, Vikram Gill (Defendant and Appellant)
Represented by Scott Concklin
Attorney At Law
2205 Hilltop Drive, PMB 116
Redding, CA

2The People (Plaintiff and Respondent)
Represented by Attorney General - Sacramento Office
David Andrew Eldridge, DAG
P.O. Box 944255
Sacramento, CA

Nov 24 2003Opinion: Affirmed

Nov 12 2002Petition for review filed
  by counsel for appellant (Vikram Gill BIlla).
Nov 13 2002Record requested
Nov 14 2002Received Court of Appeal record
Dec 11 2002Time extended to grant or deny review
  to and including February 10, 2003.
Jan 22 2003Petition for Review Granted; issues limited (criminal case)
  The issue to be briefed and argued shall be limited to whether the felony-murder rule applies where an accomplice accidentally kills himself while jointly engaged with the defendant in the perpetration of the underlying felony. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Feb 6 2003Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Scott Concklin is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order.
Mar 10 2003Opening brief on the merits filed
  by counsel for aplt.
Apr 7 2003Request for extension of time filed
  counsel for respondent request extension to May 9, 2003 to file the answer brief on the merits.
Apr 7 20032nd record request
  rermaining records (vol 2. of CT and RT)
Apr 8 2003Received Court of Appeal record
  two volumes
Apr 11 2003Answer brief on the merits filed
  by (AG) counsel for respondent (People)
Apr 11 2003Extension of time granted
  Respondent's time to serve and file the answer brief on the merits is extended to and including May 9, 2003. No further extensions are contemplated.
May 6 2003Reply brief filed (case fully briefed)
  by counsel for appellant (V. Billa) (40k) ,
Aug 5 2003Case ordered on calendar
  9-3-03, 9am, S.F.
Sep 3 2003Cause argued and submitted
Nov 24 2003Opinion filed: Judgment affirmed in full
  OPINION BY: Chin, J -- joined by: George, C.J., Kennard, Baxter, Werdegar, Brown, Moreno, JJ.
Dec 26 2003Remittitur issued (criminal case)
Jan 5 2004Received:
  receipt for remittitur from CA 3

Mar 10 2003Opening brief on the merits filed
Apr 11 2003Answer brief on the merits filed
May 6 2003Reply brief filed (case fully briefed)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website