Stanford Law School - Robert Crown Law Library

Filed 8/19/04



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S118034

v.

Ct.App. A095055

QUINCY ROBERTSON,

Alameda

County

Defendant and Appellant.

Super. Ct. No. C135605





In this case we must determine whether the trial court properly instructed

the jury that defendant could be convicted of second degree felony murder based

upon the predicate offense of discharging a firearm in a grossly negligent manner

(Pen Code, § 246.3),1 or whether the second degree felony-murder rule was

inapplicable under the so-called merger doctrine referred to in People v. Ireland

(1969) 70 Cal.2d 522 (Ireland) and later cases. For the reasons explained below,

we conclude that the merger doctrine did not bar instruction on second degree

murder based upon a felony-murder theory. Although the Court of Appeal

majority reached a contrary conclusion, it nonetheless affirmed the judgment of

conviction, finding harmless any error on the part of the trial court in instructing


1

All further statutory references are to the Penal Code, unless otherwise

indicated.

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the jury that it could convict defendant under a second degree felony-murder

theory. Because we conclude the trial court did not err in instructing the jury, we

affirm the judgment of the Court of Appeal upholding defendant’s conviction.

I

Defendant Quincy Robertson was convicted of second degree murder

(§ 187) and committing assault with a deadly weapon and by means of force likely

to inflict great bodily injury. (§ 245, subd. (a)(1).) The jury found true the

following allegations: that defendant personally used a firearm in the commission

of these offenses (§§ 1203.06, 12022.5); that, in connection with the murder

charge, he intentionally discharged a firearm, proximately causing great bodily

injury or death (§ 12022.53, subd. (d)); and that, in connection with the assault

charge, he inflicted great bodily injury (§ 12022.7). The court sentenced

defendant to a term of 15 years to life in prison for the murder, with an

enhancement of 25 years to life pursuant to section 12022.53, subdivision (d). The

court also sentenced him to a concurrent term of eight years in prison for the

assault offense, enhanced by the firearm-use and great-bodily-injury findings.

During the evening of December 27, 1998, the victims Kehinde Riley and

Ricky Harris, joined by Bradley Gentry and Lamont Benton, imbibed alcohol and

used marijuana and cocaine while they went for a drive in Benton’s automobile.

At approximately 10:30 p.m., they stopped in front of defendant’s residence on

99th Avenue Court in Oakland. Riley and Harris approached defendant’s

automobile, a Chevrolet Caprice Classic, which was parked in front of defendant’s

residence. According to Benton’s testimony at trial, while Gentry and Benton

looked on, Riley and Harris began removing the vehicle’s hubcaps, making loud

noises in the process. They had removed the passenger side hubcaps and were

turning to the driver side hubcaps when defendant emerged onto the porch of his

residence.

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According to statements subsequently made by defendant to the police, he

had been watching television with his wife and children, heard a loud noise and,

retrieving a firearm, went outside to investigate. Defendant denied any

involvement in the shooting in his initial statement. After gunshot residue was

discovered on his right hand, defendant claimed he had fired a weapon earlier in

the day to demonstrate its operation for a prospective buyer. Following further

interrogation, defendant explained that upon hearing a sound outside, he looked

out and observed three or four men near his automobile, apparently engaged either

in dismantling it or stealing it. Defendant recalled that the men looked at him in a

threatening manner, and he was uncertain whether they would attempt to enter his

residence. In his final statement to the police, defendant claimed that when he

emerged from his residence, he held his gun at a 45-degree angle and fired two

warning shots. The physical evidence, however, indicated that three shots had

been fired. A bullet hole discovered in the windshield of defendant’s automobile

and two other bullet holes found two feet from ground level in a vehicle that was

parked across the street tended to disprove defendant’s claim that he had held the

gun at a 45-degree angle.

Benton testified at trial that immediately following defendant’s discharge of

the weapon from the porch, Benton and Gentry drove away, while Riley and

Harris attempted to flee on foot. Benton testified he heard from seven to nine

additional gunshots as he drove away. Defendant, claiming he had heard a sound

that resembled either a car backfire or the discharge of a firearm, admitted in his

final statement to the police that he had walked at least as far as the sidewalk and

possibly into the street before firing three shots at the fleeing men. He denied

intending that the shots hit the men and claimed that he fired upwards into the air,

intending, as he said, to “scare people away from my domain.” He conceded that

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firing a weapon in a residential neighborhood was dangerous to human life, but

said he had not been thinking clearly.

Riley’s body was discovered approximately 50 yards from where gun

casings indicated the firearm had been discharged. It appeared the shots had been

fired by a person standing in the middle of the street in front of defendant’s

residence. Riley had been shot in the back of the head. Harris suffered a gunshot

wound to the sole of his right foot.

On the night of the incident, one of defendant’s neighbors heard shots and

witnessed a person standing in a “firing stance” in the street, firing shot after shot

straight ahead and on each occasion correcting for the weapon’s “kickback.” The

neighbor witnessed this person “swagger” back to the apartment complex where

defendant resided.

One bullet casing was discovered on the porch of defendant’s residence,

two additional casings at the bottom of the stairs leading to defendant’s apartment,

and seven casings in the middle of the street in front of defendant’s residence.

Based upon the location of the bullet casings found in the street, the physical

features of the surrounding neighborhood, and the location at which Riley and

Harris were discovered after the shooting, the prosecution’s ballistics expert

testified that if the person who fired the weapon had held it at a 45-degree angle,

he or she would not have struck the victims. This witness testified that in his

opinion, the shooter must have pointed the weapon at the victims.

Character witnesses who testified in favor of defendant asserted that he was

not a violent person, nor was he prone to anger. He enjoyed working on cars and

was engaged in restoring his Chevrolet Caprice Classic for resale. Defendant’s

wife testified that during the time they resided on 99th Avenue Court, at least three

of the family’s vehicles had been broken into or vandalized.

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Defendant’s nephew recounted an episode in which defendant had been the

victim of a shooting. The episode occurred six months prior to the charged

crimes, following an automobile accident involving this nephew and the driver of

another vehicle. After an argument erupted between the nephew and the other

driver and while defendant was attempting to subdue his nephew, someone from

the other vehicle fired on them, seriously injuring defendant’s right arm. A

clinical psychologist testified in defendant’s behalf, expressing the opinion that

defendant suffered from posttraumatic stress syndrome as a result of this and other

incidents, that this condition caused defendant to be fearful and easily aroused

emotionally, and that defendant likely had acted impulsively, without forethought,

when he fired on the victims.

A ballistics expert testified on behalf of defendant, stating that persons

lacking experience in shooting firearms tend to shoot in a manner that causes them

to strike objects below their intended target.

In connection with the homicide charge, the jury was instructed on first

degree murder, second degree murder with express malice, second degree murder

with implied malice, second degree felony murder based on commission of the

crime of discharging a firearm in a grossly negligent manner, and voluntary

manslaughter. The defense argued that, at most, defendant might be liable for

voluntary manslaughter on the theory that he acted in the heat of passion or from

an honest but unreasonable belief in the need to defend himself.

The jury deliberated for three days. At that point, a juror who complained

of debilitating stress arising from asserted conflict among the deliberating jurors

was excused. The juror was replaced by an alternate, and the jury deliberated for

an additional three days prior to rendering its verdict.

Defendant appealed, asserting, among other contentions, that the trial court

erred in instructing the jury on second degree felony murder based upon the

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predicate offense of discharging a firearm in a grossly negligent manner, because,

under the teaching of Ireland, supra, 70 Cal.2d 522, the latter offense necessarily

merged with the homicide. A majority of the Court of Appeal agreed, but

determined that the error was harmless because, in view of the particular

instructions given in the present case, the verdict finding defendant guilty of the

aggravated assault on Harris also demonstrated that the jury necessarily rejected

defendant’s primary argument that when he shot the victims, he merely intended

to frighten them away from his residence. The remaining justice concurred in the

judgment only, concluding that it was unnecessary for the court to comment on the

merger doctrine, because any error was harmless.

II

We must determine whether the trial court erred by instructing the jury that

defendant could be found guilty of second degree felony murder if the killing was

committed in the course of discharging a firearm in a grossly negligent manner in

violation of section 246.3. The resolution of this question requires a brief review

of the elements of various homicide offenses, the second degree felony-murder

doctrine, and the merger doctrine.

Murder is defined as an unlawful killing committed with malice

aforethought. (§ 187, subd. (a).) An unlawful killing with malice aforethought,

perpetrated by certain specified means or that is willful, deliberate, and

premeditated, constitutes murder in the first degree. (§ 189.) A killing in the

course of the commission of certain enumerated felonies also constitutes murder in

the first degree. (§ 189.)

Second degree murder is an unlawful killing with malice aforethought, but

without the elements that elevate an unlawful killing to first degree murder.

(§§ 187, subd. (a), 189; People v. Hansen (1994) 9 Cal.4th 300, 307 (Hansen).) In

addition, an unlawful killing in the course of the commission of a felony that is

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inherently dangerous to human life but is not included among the felonies

enumerated in section 189, constitutes at least murder in the second degree.

(People v. Ford (1964) 60 Cal.2d 772, 795.)

Malice may be express or implied. Malice is express “when there is

manifested a deliberate intention unlawfully to take away the life of a fellow

creature.” (§ 188.) It is implied “when no considerable provocation appears, or

when the circumstances attending the killing show an abandoned and malignant

heart.” (Ibid.) More specifically, “malice is implied ‘when the killing results from

an intentional act, the natural consequences of which are dangerous to life, which

act was deliberately performed by a person who knows that his conduct endangers

the life of another and who acts with conscious disregard for life.’ [Citation.]”

(People v. Lasko (2000) 23 Cal.4th 101, 107.) An unlawful killing may constitute

manslaughter rather than murder even in the presence of intent to kill or conscious

disregard for life, however, if the defendant killed in a “sudden quarrel or heat of

passion” (§ 192, subd. (a); People v. Lasko, supra, 23 Cal.4th at pp. 108, 110-111)

or in an unreasonable but good faith belief in the need to act in self defense.

(People v. Blakeley (2000) 23 Cal.4th 82, 89, 91.)

The felony-murder rule eliminates the need for proof of malice in

connection with a charge of murder, thereby rendering irrelevant the presence or

absence of actual malice, both with regard to first degree felony murder and

second degree felony murder. (Hansen, supra, 9 Cal.4th at p. 308; People v.

Patterson (1989) 49 Cal.3d 615, 626; Ireland, supra, 70 Cal.2d at pp. 538, 539.)

As we have explained: “Implied malice, for which the second degree felony-

murder doctrine acts as a substitute [fn. omitted], has both a physical and a mental

component. . . . The mental component is the requirement that the defendant

‘knows that his conduct endangers the life of another and . . . acts with a conscious

disregard for life.’ [Citation.] [¶] The second degree felony-murder rule

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eliminates the need for the prosecution to establish the mental component.”

(People v. Patterson, supra, 49 Cal.3d at p. 626, italics omitted.)

Because malice has been eliminated as an element, circumstances that may

serve to reduce the crime from murder to manslaughter, such as provocation or

imperfect self-defense, are not relevant in the case of a felony murder. (People v.

Seaton (2001) 26 Cal.4th 598, 665; In re Christian S. (1994) 7 Cal.4th 768, 773,

fn. 1; People v. Balderas (1985) 41 Cal.3d 144, 197 [provocation and heat of

passion cannot reduce a felony murder to manslaughter, because “ ‘malice,’ the

mental state which otherwise distinguishes murder from voluntary manslaughter,

is not an element of felony murder”]; People v. Ford, supra, 70 Cal.2d at p. 795

[unlawful killing in the course of an inherently dangerous felony cannot constitute

manslaughter but constitutes at least second degree murder]; Ireland, supra, 70

Cal.2d at p. 539 & fn. 13 [but for the merger doctrine, a second degree felony-

murder instruction that correctly stated the law would permit the jury to disregard

the defendant’s diminished capacity defense]; People v. Tabios (1998) 67

Cal.App.4th 1, 8-9 [claim of imperfect self-defense is irrelevant to the charge of

second degree felony murder]; People v. Anderson (1991) 233 Cal.App.3d 1646,

1666; People v. Loustaunau (1986) 181 Cal.App.3d 163, 170.)

A principal purpose of the felony-murder rule is deterrence. Case law has

emphasized the need to deter the commission of felonies that put human life at risk

(Hansen, supra, 9 Cal.4th at pp. 310, 311, 314; People v. Satchell (1971) 6 Cal.3d

28, 42-43, disapproved on another ground in People v. Flood (1998) 18 Cal.4th

470) [the doctrine is intended to deter felonious acts “in which danger to human

life is inherent”]; People v. Clem (2000) 78 Cal.App.4th 346, 349), and also the

need to deter persons who commit such felonies from committing negligent or

accidental killings in the course of these felonies. (Hansen, supra, 9 Cal.4th at pp.

308, 310, 315; People v. Clem, supra, 78 Cal.App.4th at p. 349.)

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The first degree felony-murder rule is a creation of statute. (§ 189.) The

second degree felony-murder rule is a common law doctrine. In the case of a

second degree felony-murder charge, the inherent danger to human life posed by

the defendant’s unlawful conduct serves to justify the conclusion that proof of

actual malice should not be required. (Hansen, supra, 9 Cal.4th at p. 308; People

v. Satchell, supra, 6 Cal.3d at p. 43.) We have explained that “when society has

declared certain inherently dangerous conduct to be felonious, a defendant should

not be allowed to excuse himself by saying he was unaware of the danger to

life . . . .” (People v. Patterson, supra, 49 Cal.3d at p. 626.)

The second degree felony-murder doctrine is limited to inherently

dangerous felonies because, in the absence of such danger, it would be less

justifiable to remove the element of malice from the prosecutor’s burden of proof.

(Hansen, supra, 9 Cal.4th at p. 308; People v. Satchell, supra, 6 Cal.3d at p. 43.)

“[O]nly felonies ‘inherently dangerous to human life’ are sufficiently indicative of

a defendant’s culpable mens rea to warrant application of the felony-murder rule.”

(Hansen, supra, 9 Cal.4th at p. 314.) The commission of an inherently dangerous

felony indicates that the killing was “tinged with malevolence.” (People v.

Burroughs (1984) 35 Cal.3d 824, 832.)

The doctrine is limited to inherently dangerous felonies for the additional

reason that the hazard to life presented by such felonies is foreseeable. When the

danger is foreseeable, it is rational to expect a felon to take precautions not to kill

accidentally or negligently — or to forgo commission of the hazardous felony

altogether. (See Hansen, supra, 9 Cal.4th at pp. 308, 314.) A defendant is

unlikely to be deterred if it is not reasonably foreseeable to him or her that

“ ‘ “death might arise solely from the fact that he [or she] will commit the

felony.” ’ ” (Id. at p. 308.)

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A felony is considered inherently dangerous to human life when the felony,

viewed in the abstract, “by its very nature . . . cannot be committed without

creating a substantial risk that someone will be killed” (People v. Burroughs,

supra, 35 Cal.3d at p. 833), or carries a “ ‘high probability’ that death will

result.’ ” (People v. Patterson, supra, 49 Cal.3d at p. 627; see also Hansen, supra,

9 Cal.4th at pp. 309, 329 (conc. & dis. opn. of Kennard, J. [observing that a felony

may carry a high probability that death will result even though death may not

result in “a majority, or even in a great percentage, of instances”]); People v.

Clem, supra, 78 Cal.App.4th at p. 349 [“ ‘ “[h]igh probability” ’ in this context

does not mean a ‘ “greater than 50 percent” ’ chance”].)

In the present case, as we previously noted, the court instructed the jury on

first degree murder, second degree murder with express malice, second degree

murder with implied malice, second degree felony murder, and voluntary

manslaughter. For the purpose of the second degree felony-murder rule, it

instructed that the predicate felony was the discharge of a firearm in a grossly

negligent manner, which is defined as follows: “Except as otherwise authorized

by law, any person who willfully discharges a firearm in a grossly negligent

manner which could result in injury or death to a person is guilty of a public

offense and shall be punished by imprisonment in the county jail not exceeding

one year, or by imprisonment in the state prison.” (§ 246.3.)2

Section 246.3 was enacted primarily to deter the dangerous practice that

exists in some communities of discharging firearms into the air in celebration of

2

The question whether an offense that may be punished either as a felony or

a misdemeanor may serve as the basis for a felony-murder instruction has not been
raised in this case. (See People v. Satchell, supra, 6 Cal.3d at p. 35, fn. 13 [it is
appropriate to rely upon such a predicate offense in a second degree felony-murder
prosecution]; see also People v. Clem, supra, 78 Cal.App.4th at p. 350, fn. 2.)

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festive occasions. (People v. Clem, supra, 78 Cal.App.4th at p. 350; People v.

Alonzo (1993) 13 Cal.App.4th 535, 539-540 [referring to the crime as constituting

a reckless act that endangers the public directly and that also generates the risk of

responsive gunfire].)

Section 246.3 requires proof that the defendant intended to discharge the

firearm. (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437, 1438-1440.) A

defendant who believed that the firearm he or she discharged was unloaded, for

example, would not be guilty of a violation of section 246.3. (Id. at p. 1440.) In

addition, there are circumstances in which the discharge of a firearm is not

unlawful, even if the act entails a risk of serious harm to other persons. One may

be privileged to employ force, including that involved in the discharge of a

firearm, in defense of oneself or another or of property, under defined

circumstances. One is entitled to use such force as is reasonable under the

circumstances to repel what is honestly and reasonably perceived to be a threat of

imminent harm. (§§ 197, 198, 692-694; People v. Minifie (1996) 13 Cal.4th 1055,

1064-1065; People v. Myers (1998) 61 Cal.App.4th 328, 334-335; CALJIC

No. 9.03.3 [willful discharge of a firearm is not unlawful if executed in self-

defense or defense of another; prosecution must prove discharge is not in lawful

self-defense or defense of another]; see also CALJIC Nos. 5.12 [justifiable

homicide], 5.13 [same], 5.32 [legitimate use of force in defense of another]; 5.40

[defense of property — ejection of trespasser], 5.42 [resisting intruder], 5.43

[defense of property], 5.44 [presumptions arising from the defendant’s forcible

entry into a home].)

As for the requirement that the defendant must have discharged the firearm

in a grossly negligent manner, the term is not defined by the statute, but its usual

meaning in the context of establishing criminal liability is “ ‘ “aggravated,

culpable, gross, or reckless . . . conduct [that is] such a departure from what would

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be the conduct of an ordinarily prudent or careful [person] under the same

circumstances as to be incompatible with a proper regard for human life . . . .” ’ ”

(People v. Valdez (2002) 27 Cal.4th 778, 783.) As we have observed, “criminal

negligence is the appropriate standard when the act is intrinsically lawful . . . but

warrants criminal liability because the surrounding circumstances present a high

risk of serious injury. Criminal negligence is not a ‘lesser state of mind’; it is a

standard for determining when an act may be punished under the penal law

because it is such a departure from what would be the conduct of an ordinarily

prudent or careful person under the same circumstances.” (Id. at pp. 789-790.)

The jury was instructed in the present case: “ ‘Gross negligence’ refers to a

negligent act which is aggravated, reckless or flagrant and which is such a

departure from the conduct of an ordinarily prudent, careful person under the same

circumstances as to be contrary to a proper regard for human life or a danger to

human life or to constitute indifference to the consequences of those acts. The

facts must be such that the consequences of the negligent act could reasonably

have been foreseen and it must appear that the death or danger to human life was

not the result of inattention, mistaken judgment or misadventure but the natural

and probable result of an aggravated, reckless or flagrantly negligent act.” (See

CALJIC No. 3.36; see also People v. Penny (1955) 44 Cal.2d 861, 879; People v.

Alonzo, supra, 13 Cal.App.4th at pp. 539-540 [applying this standard to a

prosecution for violation of section 246.3].) Again, gross negligence is not present

when the discharge of a firearm is honestly and reasonably undertaken in defense

of self or another or of property.

The court in People v. Clem, supra, 78 Cal. App.4th 346, concluded that

section 246.3 constitutes an inherently dangerous felony for the purpose of the

second degree felony-murder rule (People v. Clem, supra, at pp. 353-354), and

defendant does not challenge this conclusion. The appellate court quoted our

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observation that “ ‘[t]he tragic death of innocent and often random victims . . . as

the result of the discharge of firearms, has become an alarmingly common

occurrence in our society — a phenomenon of enormous concern to the public’ ”

(People v. Clem, supra, 78 Cal.App.4th at p. 351, quoting Hansen, supra, 9

Cal.4th at p. 311.) The court reasoned that the offense is inherently dangerous

because it involves discharge of the highly lethal instrumentality of a firearm with

gross negligence in a manner that “could result in injury or death to a person”

(§ 246.3). It added that “ ‘[i]mminent deadly consequences [are] inherent in the

act’ [citation] even if the bullet fortuitously falls so as to injure and not kill.”

(People v. Clem, supra, 78 Cal.App.4th at p. 353.) By its terms, the statute

“presupposes that there are people in harm’s way” (id. at p. 351) and that a

reasonable person in defendant’s situation would have “reasonable grounds to

suspect that people will be endangered.” (Id. at p. 352.) The court concluded that

“a killer who violates section 246.3 ‘is engaged in a felony whose inherent danger

to human life renders logical an imputation of malice on the part of all who

commit it.’ ” (Ibid.)

On appeal, although defendant does not dispute that the grossly negligent

discharge of a firearm in violation of section 246.3 constitutes an inherently

dangerous felony for the purpose of the second degree felony-murder rule, he

claims that the merger doctrine precludes the use of a violation of section 246.3 as

a predicate offense upon which to base liability for second degree felony murder.

The Court of Appeal agreed.

The merger doctrine was recognized by this court in Ireland, supra, 70

Cal.2d 522. In that case, we held that the trial court erred in instructing the jury on

second degree felony murder based on the crime of assault with a deadly weapon.

The defendant’s crime of assault with a deadly weapon merged with a resulting

homicide and could not form the basis for an application of the second degree

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felony-murder rule. The instructional error was prejudicial because, as we have

seen, malice is not an element of second degree felony murder and therefore the

felony murder instruction in the Ireland case permitted the jury to disregard the

defendant’s diminished capacity defense. (Id. at p. 539 & fn. 13.) We observed

that “[t]o allow such use of the felony-murder rule would effectively preclude the

jury from considering the issue of malice aforethought in all cases wherein

homicide has been committed as the result of felonious assault — a category

which includes the great majority of all homicides.” (Id. at p. 539.) The felony-

murder instruction is not proper when the predicate felony is an “integral part of

the homicide” and when, under the prosecution’s evidence, it is “included in fact

within the offense charged.” (Id. at p. 539, italics omitted.)

More recently, in Hansen, supra, 9 Cal.4th 300, we explained that the

Ireland rule was intended to avoid elevating every felonious assault that ends in

death to second degree murder, a result that would “usurp most of the law of

homicide, relieve the prosecution in the great majority of homicide cases of the

burden of having to prove malice in order to obtain a murder conviction, and

thereby frustrate the Legislature’s intent to punish certain felonious assaults

resulting in death (those committed with malice aforethought, and therefore

punishable as murder) more harshly than other felonious assaults that happened to

result in death (those committed without malice aforethought, and therefore

punishable as manslaughter).” (Hansen, supra, 9 Cal.4th at pp. 311-312.) We

concluded in Hansen, however, that such a disfavored result would not follow

when a felony-murder verdict is based upon the crime of discharging a weapon at

an inhabited dwelling. We rejected the defendant’s contrary and “unduly

expansive view of the scope of the ‘merger’ doctrine.” (Ibid.)

We have cautioned that, traditionally, the merger rule has not been

extended to offenses other than assault. (Hansen, supra, 9 Cal.4th at p. 312.) The

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merger rule is premised upon the concern that it “would subvert the legislative

intent for a court to apply the felony-murder rule automatically to elevate all

felonious assaults resulting in death to second degree murder even where the felon

does not act with malice. In other words, if the felony-murder rule were applied to

felonious assaults, all such assaults ending in death would constitute murder,

effectively eliminating the requirement of malice — a result clearly contrary to

legislative intent.” (Id. at p. 314, italics omitted.)

In Ireland, we referred to assaults that merge with a homicide because they

are an “integral part of” and “included in fact” within the homicide. (Ireland,

supra, 70 Cal.2d at p. 539, italics omitted.) Subsequently, in People v. Mattison

(1971) 4 Cal.3d 177, we rejected a claim of merger on a different theory. In

Mattison, the defendant was a prison inmate who furnished methyl alcohol to a

fellow inmate, causing the latter’s death. We held that the trial court properly

instructed on second degree felony murder based on the furnishing offense. We

explained that the merger doctrine does not apply when death results from

defendant’s commission of a felony with an independent purpose, that is, when the

felony that provides the basis for the felony-murder conviction “was not done with

the intent to commit injury which would cause death.” (Id. at p. 185.) We

rejected the defendant’s claim that the offense of furnishing poisonous alcohol

merged with the resulting homicide; there was no merger, because the felony-

murder verdict was based upon defendant’s commission of a felony with a

“ ‘collateral and independent felonious design.’ ” (Ibid.) We expressed

confidence that our conclusion was consistent with the deterrent purpose of the

felony-murder rule, because we envisioned that application of the felony-murder

rule would deter commission of the underlying inherently dangerous crime. (Id. at

pp. 185, 186.) Although a person who has decided to assault another would not be

deterred by the felony-murder rule, we declared, a defendant with some collateral

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purpose may be deterred. The knowledge that a murder conviction may follow if

an offense such as furnishing a controlled substance or tainted alcohol causes

death “ ‘should have some effect on the defendant’s readiness to do the

furnishing.’ ” (Id. at p. 186)

In the Mattison case, we concluded that use of the second degree felony-

murder rule was appropriate when the purpose of the predicate felony was

independent of or collateral to an intent to cause injury that would result in death.

(People v. Mattison, supra, 4 Cal.3d at p. 185.) Although the collateral purpose

rationale may have its drawbacks in some situations (Hansen, supra, 9 Cal.4th at

p. 315), we believe it provides the most appropriate framework to determine

whether, under the facts of the present case, the trial court properly instructed the

jury. The defendant’s asserted underlying purpose was to frighten away the young

men who were burglarizing his automobile. According to defendant’s own

statements, the discharge of the firearm was undertaken with a purpose collateral

to the resulting homicide, rendering the challenged instruction permissible. As

Justice Werdegar pointed out in her concurring opinion in Hansen, a defendant

who discharges a firearm at an inhabited dwelling house, for example, has a

purpose independent from the commission of a resulting homicide if the defendant

claims he or she shot to intimidate, rather than to injure or kill the occupants.

(Hansen, supra, 9 Cal.4th at p. 318 (conc. opn. of Werdegar, J.).)

As the Court of Appeal majority itself recognized, we have declared that

the second degree felony-murder rule is intended to deter both carelessness in the

commission of a crime and the commission of the inherently dangerous crime

itself. (Hansen, supra, 9 Cal.4th at pp. 310, 311, 314; People v. Mattison, supra, 4

Cal.3d at p. 185.) We believe that a deterrent purpose is served under the second

degree felony-murder rule in the case of a violation of section 246.3 because, by

definition, it must be reasonably foreseeable to such a defendant that the

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intentional discharge of the firearm could result in injury or death. In view of the

reasonable foreseeability of the risk of injury or death, knowledge that punishment

for second degree felony murder may ensue if a death occurs may deter

individuals from illegally discharging a firearm — whether they are contemplating

doing so in order to celebrate a festive occasion or for some other purpose such as

to frighten away persons who do not present what a reasonable person would

consider a threat of imminent harm to the defendant. Of course, if a defendant

reasonably discharged a firearm to frighten away a person who did present what a

reasonable person would consider to be an imminent threat, the prosecution would

not be able to establish a violation of section 246.3 even if an injury or death

resulted, and no felony-murder conviction would ensue.

The Court of Appeal majority questioned the applicability of the collateral

purpose rationale when the underlying felony is based upon the defendant’s gross

negligence, stating “[t]he ‘independent felonious design’ test, which turns on the

purpose of the defendant’s actions, does not fit well with negligent conduct, and

its outcome here would also be uncertain, given appellant’s statements that he

merely intended to frighten away the victims.” The Court of Appeal majority

asserted that the deterrent purpose of the felony-murder rule would not be served

if a conviction could be based upon a violation of section 246.3, again because the

crime is one involving gross negligence. The Court of Appeal majority stated: “It

makes no sense to speak of promoting careful gross negligence.” It does make

sense, however, to speak of deterring persons from discharging a firearm in a

grossly negligent manner that could result in injury or death. It certainly is

possible to encourage the prudent handling of firearms by punishing reckless

imprudence in the handling and discharge of such weapons.

The Court of Appeal majority believed that the conclusion it reached had

the effect of avoiding absurd results, stating: “If grossly negligent discharge of a

17

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firearm does not merge with a resulting homicide, then defendants who say, ‘I

didn’t mean to do it’ will in effect be pleading guilty to second degree felony

murder in a majority of homicide cases.” Of course, the result predicted by the

Court of Appeal majority and by defendant will not occur in any of the many

homicide cases in which a firearm is not used. Nor will it occur when the

defendant’s claim that he or she did not intend to kill or injure the victim arises in

the context of a defense to the section 246.3 charge involving the discharge of a

firearm with the intent to frighten away an intruder as a reasonable response to an

imminent threat to self, others, or property. Nor will it occur if the defendant’s

defense to the section 246.3 charge is that the discharge itself was unintentional.

In addition, in making the above statement, the Court of Appeal majority

overlooked one of the underlying justifications for the second degree felony-

murder rule: when the danger to human life is so foreseeable to reasonable

persons that the felony has been designated as one that is inherently dangerous to

human life, the very foreseeability of this danger has led courts to conclude that

the defendant’s claim that he or she “didn’t mean to do it” should not be heard,

once the mental state necessary to the underlying offense has been proved. As we

have stated, “when society has declared certain inherently dangerous conduct to be

felonious, a defendant should not be allowed to excuse himself by saying he was

unaware of the danger to life . . . .” (People v. Patterson, supra, 49 Cal.3d at

p. 626.)

The Court of Appeal majority added that application of the merger doctrine

was necessary in order to avoid the absurd consequence that “[d]efendants who

admit an intent to kill, but claim to have acted with provocation or in honest but

unreasonable self-defense, would likely have a stronger chance [than defendants

who claimed ‘I didn’t meant to do it’] of being convicted of the lesser offense of

voluntary manslaughter.”

18

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The asserted anomaly identified by the Court of Appeal is characteristic of

the second degree felony-murder rule in general and is inherent in the doctrine’s

premise that it is reasonable to impute malice — or, more precisely, to eliminate

consideration of the presence or absence of actual malice — because of the

defendant’s commission of an underlying felony that is inherently and foreseeably

dangerous. (See Hansen, supra, 9 Cal.4th at p. 308; People v. Satchell, supra, 6

Cal.3d at p. 43.) Reliance on section 246.3 as the predicate offense presents no

greater anomaly in this regard than such reliance on any other inherently

dangerous felony.

Defendant urges us to extend the merger doctrine to encompass violations

of section 246.3 on the basis of the language in some of our cases expressing

unease with the expansion of the felony-murder rule. (See, e.g., People v.

Patterson, supra, 49 Cal.3d at pp. 621, 627.) We decline defendant’s invitation to

restrict the felony-murder rule by expanding the merger doctrine in the present

case. The second degree felony-murder rule is well established. (Id. at p. 621

[“The second degree felony-murder doctrine has been a part of California’s

criminal law for many decades”].) Although the merger doctrine forestalls the

substitution of proof of an assault for proof of malice out of a concern that, in the

great majority of homicide cases, such a substitution would enable the second

degree felony-murder rule to supersede the requirement of malice, the same

concern does not appear under the present circumstances.

We conclude that the merger doctrine does not preclude application of the

felony-murder rule under the facts of the present case and that the trial court did

not err by instructing the jury concerning the second degree felony-murder rule

and the predicate offense of discharging a firearm in a grossly negligent manner.

Although we disagree with Court of Appeal majority’s application of the

merger doctrine, the Court of Appeal, as already noted, affirmed the judgment of

19

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conviction on the ground that any error was harmless. Because we conclude that

the trial court did not err in instructing the jury on the second degree felony-

murder rule, we agree with the Court of Appeal’s conclusion that the judgment of

conviction should be affirmed.

III

For the foregoing reasons, the judgment of the Court of Appeal is affirmed.

GEORGE, C.J.



WE CONCUR:

BAXTER, J.
CHIN, J.
MORENO, J.

20

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CONCURRING OPINION BY MORENO, J.




I concur in the opinion and agree with the majority’s analysis and holding

that the merger doctrine (People v. Ireland (1969) 70 Cal.2d 522) does not

preclude the offense of willful “discharge[ of] a firearm in a grossly negligent

manner” (Pen. Code, § 246.3)1 from serving as a predicate felony for second

degree felony murder. Viewing the offense of discharging a firearm in a grossly

negligent manner in the abstract (maj. opn., ante, at p. 10; People v. Burroughs

(1984) 35 Cal.3d 824, 833 (Burroughs); People v. Patterson (1989) 49 Cal.3d 615,

620 (Patterson)), there can be no doubt it is inherently dangerous to human life, a

proposition defendant does not contest (maj. opn., ante, at p. 12), thereby making

it eligible to be a predicate felony under existing precedent (maj. opn., ante, at p.

9; People v. Satchell (1971) 6 Cal.3d 28, disapproved on another point in People v.

Flood (1998) 18 Cal.4th 470; Patterson, supra, 49 Cal.3d at p. 620). However, I

write separately and briefly to express my concern, not with the majority’s

resolution of the precise issue presented in this case, but with a broader issue not

raised by defendant – whether this court should continue to adhere to the doctrine

of second degree felony murder.2


1

All further statutory references are to the Penal Code.

2

Defendant does not challenge the doctrine, therefore the issue is not directly

before this court.

1

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This court has defined second degree felony murder as “ ‘[a] homicide that

is a direct causal result of the commission of a felony inherently dangerous to

human life (other than the six felonies enumerated in Pen. Code, § 189) . . . .’ ”

(Patterson, supra, 49 Cal.3d at p. 620, quoting People v. Ford (1964) 60 Cal.2d

772, 795.) As the majority points out, second degree felony murder is well

established in California. (Maj. opn., ante, at p. 19.) But unlike first degree

felony murder, which is codified in section 189 (People v. Dillon (1983) 34 Cal.3d

441, 472), “the second degree felony-murder rule remains, as it has been since

1872, a judge-made doctrine without any express basis in the Penal Code” (id. at

p. 472, fn. 19; see also maj. opn., ante, at p. 9).

The felony-murder rule has been roundly criticized both by commentators

and this court. As one commentator put it, “[t]he felony murder rule has an

extensive history of thoughtful condemnation.” (Gerber, The Felony Murder

Rule: Conundrum Without Principle (1999) 31 Ariz. St. L.J. 763, 766.) This court

recognized in People v. Washington (1965) 62 Cal.2d 777, 783, that the “felony-

murder rule has been criticized on the grounds that in almost all cases in which it

is applied it is unnecessary and that it erodes the relation between criminal liability

and moral culpability.” (See also In re Christian S. (1994) 7 Cal.4th 768, 785

(conc. opn. of Mosk, J.); People v. Satchell, supra, 6 Cal.3d at p. 33.) In

Burroughs, we said that “[t]his court has long held the felony-murder rule in

disfavor. ‘We have repeatedly stated that felony murder is a “highly artificial

concept” which “deserves no extension beyond its required application.”

[Citations.]” (Burroughs, supra, 35 Cal.3d at p. 829.) We acknowledged our

previous criticism of this rule: “ ‘The felony-murder doctrine has been censured

not only because it artificially imposes malice as to one crime because of

defendant’s commission of another but because it anachronistically resurrects

from a bygone age a “barbaric” concept that has been discarded in the place of its

2

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origin.’ ” (Ibid., fn. 3, quoting People v. Phillips (1966) 64 Cal.2d 574, 583, fn. 6;

see also Burroughs, supra, 35 Cal.3d at pp. 836-854 (conc. opn. of Bird, C. J.)

[providing a comprehensive overview and critique of the felony murder doctrine].)

While commentators criticized, and continue to criticize, the doctrine in

both its first and second degree manifestations, my concern here is not with first

degree felony murder, which is limited to a few legislatively enumerated felonies

and is expressly codified. Absent constitutional infirmity this court is not in a

position to abrogate first degree felony murder. (See People v. Dillon, supra, 34

Cal.3d at p. 463 [“the first degree felony-murder rule is a creature of statute” that

this court may not judicially abrogate “merely because it is unwise or outdated”].)

The same is not true of second degree felony murder. Second degree felony

murder does not have the same statutory basis, and may be abrogated by this court.

(See Patterson, supra, 49 Cal.3d at p. 641 (conc. & dis. opn. of Panelli, J. [stating

doctrine is court created and calling upon the Legislature to intervene]; Burroughs,

supra, 35 Cal.3d at p. 836 (conc. opn. of Bird, C. J.) [“The time has come for this

court to discard the artificial and court-created offense of second degree felony

murder”].)

Acknowledging the criticism leveled against the second degree felony

murder doctrine, this court in Patterson declined the invitation to reconsider the

doctrine, stating that the “Legislature . . . has taken no action to alter this judicially

created rule, and has declined our more recent suggestion in People v. Dillon[,

supra, 34 Cal.3d at page 472, footnote 19], that it reconsider the rules on first and

second degree felony murder and misdemeanor manslaughter.” (Patterson, supra,

49 Cal.3d at p. 621.) Because I believe the doctrine is deeply flawed and the issue

is important, I do not believe legislative acquiescence should deter this court from

reassessing the rule in an appropriate case.

3

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The facts of this case bring into focus the inherent problems with the

second degree felony murder rule. As the Attorney General stated during oral

argument, the only reason the felony-murder instruction was submitted to the jury

is because defendant told the police that “he didn’t mean it, he didn’t intend to do

this, he wasn’t trying to hurt anybody; he wasn’t angry; he wasn’t upset; he was

just trying to scare people away from his domain.” The Attorney General further

asserted that had defendant not made those statements to the police, the felony of

grossly negligent discharge of a firearm, which served as the predicate offense for

the second degree felony-murder instruction, would not have been considered.

This court queried whether defendant actually made it easier for the prosecution to

obtain a second degree murder conviction by stating that he did not intend to kill

the victim, thereby making section 246.3 available as a predicate offense. The

Attorney General replied: “If the [defendant] had not offered these statements to

the police and had not opened this avenue up to the prosecutor, there would have

been one less theory for culpability. . . . That was a bed [defendant] made and he

must now lie in it.”

Defendant’s jury was instructed on first degree murder, second degree

murder based on express and implied malice, second degree felony murder based

on violation of section 246.3, and voluntary manslaughter. (Maj. opn., ante, at p.

5.) Without the felony-murder theory and instruction, the prosecution in this case

would have had to prove, and the jury would have had to find, that defendant acted

with malice. (See People v. Dillon, supra, 34 Cal.3d at p. 475 [“In every case of

murder other than felony murder the prosecution undoubtedly has the burden of

proving malice as an element of the crime.”].) But that was unnecessary in this

case because of the commission of the predicate felony. The prosecution, thus,

was essentially relieved of the burden to prove malice because, ironically,

defendant maintained that he did not intend to kill the victims. Having done so, he

4

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also precluded available defenses based on lack of malice because the issue of

malice is irrelevant in a felony-murder case. (Patterson, supra, 49 Cal.3d at p.

626.)

I am not fully convinced prosecutors should be permitted to use, or even

need, this back-door route to secure a second degree murder conviction. As noted

above, commentators have observed “ ‘It may be that the rule is unnecessary in

almost all cases in which it is applied, that is to say, that conviction in those cases

can be predicated on the normal rules as to murder . . . .’ ” (People v. Satchell,

supra, 6 Cal.3d at p. 33, fn. 11, quoting Packer, The Case for Revision of the Penal

Code (1961) 13 Stan.L.Rev. 252, 259.) In other words, “ ‘If the defendant

commits the felony in a highly reckless manner, he can be convicted of second

degree murder independently of the shortcut of the felony-murder rule.’ ”

(Satchell, at p. 34, fn. 11, quoting Note (1967) 55 Cal.L.Rev. 329, 340.)

In most cases involving a felony-murder theory, prosecutors should have

little difficulty proving second degree murder with implied malice. “[M]alice is

implied ‘when the killing results from an intentional act, the natural consequences

of which are dangerous to life, which act was deliberately performed by a person

who knows that his conduct endangers the life of another and who acts with

conscious disregard for life’ [citation].” (People v. Lasko (2000) 23 Cal.4th 101,

107; maj. opn., ante, at p. 7.) Eliminating second degree felony murder from the

prosecution’s arsenal would not have a detrimental effect on the prosecution’s

ability to secure second degree murder convictions, but it would go a long way to

restoring the proper balance between culpability and punishment.

Unlike Justice Brown, I concur in the majority opinion because, as stated at

the outset, the refusal to apply the merger doctrine to the predicate offense in this

case is correct given the current state of the law. Defendant neither challenges the

second degree murder doctrine nor the fact that the predicate offense of willfully

5

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discharging a firearm in a grossly negligent manner is inherently dangerous. The

subject of my concurrence, the continued viability of the second degree felony

murder rule, was neither briefed nor argued in this court, so I have not reached a

firm conclusion on this issue, but I write to express my reservations about the

doctrine and intention to examine it closely when the issue is clearly raised and

briefed in this court.

MORENO, J.

6

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DISSENTING OPINION BY KENNARD, J.




Under the second degree felony-murder rule, a defendant who kills in the

commission of a felony that is inherently dangerous to life is guilty of second

degree murder, even if the killing is accidental. But the rule applies only if the

underlying felony is committed for a felonious purpose independent of the

homicide (People v. Mattison (1971) 4 Cal.3d 177, 185); it does not apply to a

felony that “is an integral part of” and “included in fact within” the killing (People

v. Ireland (1969) 70 Cal.2d 522, 539; see also People v. Hansen (1994) 9 Cal.4th

300, 312 (Hansen)).

Here, defendant shot and killed a man who had been trying to steal hubcaps

from defendant’s car. Defendant claimed he was merely trying to scare the man

and did not intend to actually shoot him. The majority holds that the second

degree felony-murder rule applies because the killing occurred during an

inherently dangerous felony, namely, discharging a firearm with gross negligence

(Pen. Code, § 246.3),1 and defendant’s claimed objective to scare the victim was

an independent felonious purpose. Discharging a firearm with gross negligence is

indeed an inherently dangerous felony. But I disagree that defendant acted with a

felonious purpose that was independent of the killing.


1

All further statutory citations are to the Penal Code.

1

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I

On the night of December 27, 1998, Kehinde Riley, Ricky Harris, Bradley

Gentry, and Lamont Benton parked their car near defendant’s apartment in

Oakland. Riley and Harris began to steal the hubcaps from defendant’s car, which

was parked outside. When defendant came out of his apartment, Gentry and

Benton drove off, while Riley and Harris ran. Benton saw defendant fire shots

from his porch, and he heard more shots as he drove away. A neighbor saw

defendant stand in the center of the road in a “firing stance” and shoot straight

ahead. Harris was shot in the foot; Riley was shot in the back of the head and

killed. His body was found about 50 yards from where the shots were fired.

Defendant, a 25-year-old man with no criminal record, claimed he did not

shoot straight ahead, instead aiming the gun at a 45-degree angle above the

victim’s head, intending to scare the thieves. He presented expert testimony by a

psychologist that he suffered from post-traumatic stress disorder after being shot

six months earlier in a “road rage” incident.2 As a result of this incident,

defendant had become reclusive, fearful, and easily startled, causing him to

overreact to threatening situations. A firearms instructor testified that persons who

are inexperienced with firearms tend to hit below their point of aim, thereby

supporting defendant’s claim that he was aiming over the thieves’ heads when he

shot. Defendant also presented evidence of his nonviolent character.

The trial court instructed the jury on first and second degree murder, and on

voluntary manslaughter. As to second degree murder, it instructed the jury on

killing with express malice (CALJIC No. 8.30), on killing with implied malice


2

Defendant was a passenger in a car that was involved in an accident; after

an argument about who was at fault, the driver of the other car pulled a gun and
shot defendant.

2

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(CALJIC No. 8.31), and on felony murder (CALJIC No. 8.32) arising from

defendant’s alleged commission of the crime of grossly negligent discharge of a

firearm. After deliberating for six days, the jury convicted defendant of the

second degree murder of Riley; it also convicted him of assaulting Harris with a

deadly weapon. The Court of Appeal concluded the trial court’s instruction on

second degree felony murder was wrong, because the crime of grossly negligent

discharge of a firearm “merged” into the killing, but it found the error harmless.

II

At issue here is the “merger” exception to the second degree felony-murder

rule.3 That exception was first articulated by this court in People v. Ireland,

supra, 70 Cal.2d 522. In that case, the defendant shot and killed his wife. The

couple’s six-year-old daughter testified that just before the shooting her parents

were talking about which of them was going to move out, and that after her father

shot her mother he sat down, rocking back and forth and crying, until the

neighbors arrived. At the defendant’s murder trial, the trial court instructed the

jury that if the defendant killed his wife while committing an assault with a deadly

weapon he was guilty of second degree murder; the jury convicted the defendant

of that crime.

We reversed the defendant’s conviction, explaining: “We have concluded

that the utilization of the felony-murder rule in circumstances such as those before

us extends the operation of that rule ‘beyond any rational function that it is

designed to serve.’ [Citation.] To allow such use of the felony-murder rule would

effectively preclude the jury from considering the issue of malice aforethought in

all cases wherein homicide has been committed as a result of a felonious assault—


3

For convenience, I call this the “Ireland merger exception.”

3

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a category which includes the great majority of all homicides. This kind of

bootstrapping finds support neither in logic nor in law. We therefore hold that a

second degree felony-murder instruction may not properly be given when it is

based upon a felony which is an integral part of the homicide and which the

evidence produced by the prosecution shows to be an offense included in fact

within the offense charged.” (People v. Ireland, supra, 70 Cal.2d at p. 539, fn.

omitted.)

Two years later, this court in People v. Mattison, supra, 4 Cal.3d 177,

elaborated on the Ireland merger exception. In Mattison, the defendant prisoner

sold another inmate an alcoholic substance that caused the latter’s death. The trial

court instructed the jury it could convict the defendant of second degree murder

under the second degree felony-murder rule, based on his violation of a statute

making it a felony to put poison in a drink with the intent to injure (§ 347). We

upheld the conviction, explaining that the rule was inapplicable because, unlike

Ireland, “the underlying felony was committed with a ‘collateral and independent

felonious design.’ ” (Mattison, supra, 4 Cal.3d at p. 185, italics added.) We

quoted with approval a passage from People v. Taylor (1970) 11 Cal.App.3d 57, in

which the Court of Appeal upheld a defendant’s conviction under the second

degree felony-murder rule based on furnishing the victim with the heroin that

caused his demise: “ ‘While the felony-murder rule can hardly be much of a

deterrent to a defendant who has decided to assault his victim with a deadly

weapon, it seems obvious that in the situation presented in the case at bar, it does

serve a rational purpose: knowledge that the death of a person to whom heroin is

furnished may result in a conviction for murder should have some effect on the

defendant’s readiness to do the furnishing.’ ” (Mattison, supra, at p. 185.)

More recently, in Hansen, supra, 9 Cal.4th 300, a bare four-to-three

majority of this court said Mattison’s independent felonious purpose test should

4

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not be “the critical test determinative of merger in all cases” (id. at p. 315),

asserting that this test was “somewhat artificial” and could “lead to an anomalous

result” (ibid.). Instead, the majority “focus[ed] upon the principles and rationale

underlying . . . Taylor [, supra, 11 Cal.App.3d 57], namely, that with respect to

certain inherently dangerous felonies, their use as the predicate felony supporting

application of the felony-murder rule will not elevate all felonious assaults to

murder or otherwise subvert the legislative intent.” (Hansen, supra, 9 Cal.4th at

p. 315.) Applying this amorphous “test,” the Hansen majority concluded that the

Ireland merger exception did not apply to the crime of shooting at an inhabited

dwelling.

I dissented. Applying the independent felonious purpose test, I concluded

that the Ireland merger exception barred application of the second degree felony-

murder rule in Hansen. The evidence, I said, “did not show that [the] defendant

had any independent felonious purpose for discharging the firearm at the . . .

residence.” (Hansen, supra, 9 Cal.4th at p. 330 (dis. opn. of Kennard, J.).)

In this case, the majority, without explanation, abandons the rationale of the

Hansen majority, and it returns to the independent felonious purpose standard,

which it had criticized in Hansen, supra, 9 Cal.4th 300. Good. For that was the

test I urged the Hansen majority to apply, to no avail. Alas, the majority here

misapplies that test, concluding that defendant had a felonious purpose

independent of the killing. He did not, as I explain below.

III

According to the majority, defendant’s claimed purpose to scare the victim

by shooting at him was a felonious purpose independent of the killing. Under that

rationale, defendant would have been better off had he testified to firing at the

victim intending to hit him, because then the second degree felony-murder rule

would not apply. In so construing the Ireland merger exception, the majority has

5

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twisted traditional concepts of criminal law. After today’s decision, prosecutors

will try to obtain murder convictions by arguing that defendants lacked an intent

to kill, while defense attorneys, to prevent their clients from being convicted of

murder, will be compelled to argue that their clients intended to kill. I cite two

examples to illustrate the point.

1. Patricia is confronted at her home by her former boyfriend John, who

has for many years abused her physically. John looks angry. Unreasonably

believing that John is about to assault her and that she must protect herself,

Patricia pulls a gun from a nearby drawer and fires a shot that hits and kills John.

If Patricia shot John intentionally, she is guilty not of murder but of the lesser

crime of voluntary manslaughter, because she acted in “ ‘unreasonable self-

defense’—the unreasonable but good faith belief in having to act in self-defense

. . . .” (People v. Blakeley (2000) 23 Cal.4th 82, 88.) But, under the majority’s

holding today, if Patricia intended only to scare John, she is guilty of the more

serious crime of second degree murder under the felony-murder rule, because she

violated section 246.3 by discharging a firearm with gross negligence and she had

an independent felonious purpose—namely, to scare John.

2. During an argument with a close friend, Cornelia, in Cornelia’s kitchen,

Derek admits that he recently raped Cornelia’s teenage daughter at gunpoint.

Infuriated, Cornelia takes a gun from a kitchen cabinet and, as Derek backs up in

fear, fires a shot that ricochets off a metal pot and strikes Derek in the chest,

killing him. When questioned by the police, Cornelia says she wanted to make

Derek experience a fear similar to that Cornelia’s daughter must have felt when

Derek raped her at gunpoint. Under the majority’s approach, if Cornelia’s account

of her motive is true she is guilty of second degree murder, because she had an

independent felonious purpose—to make Derek feel fear—and she violated

section 246.3 (discharging a firearm with gross negligence) when she fired the

6

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fatal shot. But if Cornelia truly intended to shoot Derek, she would be guilty only

of voluntary manslaughter, because she killed him in a “sudden quarrel or heat of

passion.” (§ 192.)

Ordinarily, defense counsel tries to portray the defendant as someone with a

less culpable mental state, while the prosecutor tries to portray the defendant as

having a more culpable mental state. But under the majority’s decision today,

these positions will be reversed—oddly so—whenever the defendant is charged

with fatally shooting the victim and, as in the two examples given above, the

defense claims either unreasonable self-defense or heat of passion. One can

imagine this future closing argument by defense counsel: “Ladies and gentlemen

of the jury, the prosecutor has told you that my client was simply trying to scare

the victim when he shot her. What utter nonsense! The evidence clearly shows

that my client’s only desire was to end the victim’s life when he fired the fatal

shot.” Surely not an argument to the client’s liking or calculated to evoke the

jury’s sympathy, but one that is compelled under the majority’s holding.

Here, defense counsel argued to the jury that defendant fired the gun only

to scare, not to kill, victim Riley. The prosecutor, by contrast, argued that

defendant intended to kill Riley when he fired the fatal shot. Under the majority’s

holding, the prosecutor should have argued that defendant was only trying to scare

Riley. Defense counsel, by contrast, should have argued that defendant was trying

to injure or kill Riley, because only if defendant intended to shoot Riley could

counsel contend that defendant killed him in unreasonable self-defense, and

therefore was guilty not of murder, but only of voluntary manslaughter.

A defendant who kills in the heat of passion or in unreasonable self-defense

lacks malice, and thus is not guilty of murder but only of voluntary manslaughter.

Under the second degree felony-murder rule, however, the prosecution need not

prove malice, and therefore heat of passion and unreasonable self-defense are

7

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irrelevant. This is not a problem with any other felony to which the second degree

felony-murder rule has been held to apply, because none of those offenses is

committed in the heat of passion or in unreasonable self-defense.4 But, unlike

those other felonies, violations of section 246.3 (discharging a firearm with gross

negligence) that result in fatalities can be committed by defendants with either of

those two mental states. By holding that the second degree felony-murder rule

applies to violations of section 246.3, the majority undermines the Legislature’s

determination that homicides committed in the heat of passion or in unreasonable

self-defense are not murder but voluntary manslaughter.

Also, the majority’s holding that a violation of section 246.3 may form the

basis for a conviction under the second degree felony-murder rule is inconsistent

with the rule that to prove felony murder the prosecution must show that the

defendant had “the specific intent to commit the underlying felony.” (People

v. Hart (1999) 20 Cal.4th 546, 608; see also People v. Nichols, supra, 3 Cal.3d at

p. 163.) One wonders how a defendant could be said to have the specific intent to

violate a statute that, like section 246.3, prohibits grossly negligent conduct.


4

Courts have held that murder convictions can be based on the second

degree felony-murder rule when the underlying felony is shooting at an inhabited
dwelling (Hansen, supra, 9 Cal.4th at p. 316), manufacturing methamphetamine
(People v. James (1998) 62 Cal.App.4th 244, 257-271), reckless or malicious
possession of a destructive device (People v. Morse (1992) 2 Cal.App.4th 620,
646), kidnapping (People v. Greenberger (1997) 58 Cal.App.4th 298, 377; People
v. Pearch (1991) 229 Cal.App.3d 1282, 1298), poisoning with intent to injure
(People v. Mattison, supra, 4 Cal.3d at pp. 184-186), and arson of a motor vehicle
(People v. Nichols (1970) 3 Cal.3d 150, 163; but see People v. Henderson (1977)
19 Cal.3d 86, 96 [possibly disapproving Nichols]). In People v. Howard,
S108353, this court will decide whether the second degree felony-murder rule
applies to the crime of driving in willful or wanton disregard for the safety of
persons or property while fleeing from a pursuing police officer. (Veh. Code,
§ 2800.2.)

8

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Grossly negligent conduct is highly careless or reckless, but it is not intentional.

What is it that the defendant in the situation just described must specifically intend

to do? The majority does not say.

The majority is wrong in treating defendant’s alleged intent to scare the

victim as a felonious intent independent of the killing. An intent to scare is neither

independent nor felonious.

An intent to scare a person by shooting at the person is not independent of

the homicide because it is, in essence, nothing more than the intent required for an

assault, which is not considered an independent felonious purpose. (See generally

People v. Williams (2001) 26 Cal.4th 779 [discussing the mental state required for

an assault].) Two examples of independent felonious purpose come to mind: (1)

When the felony underlying the homicide is manufacturing methamphetamine, the

intent to manufacture this illegal drug is a felonious intent that is independent of

the homicide, thus allowing the manufacturer to be convicted of murder if the

methamphetamine laboratory explodes and kills an innocent bystander. (2) When

the underlying felony is possession of a destructive device, the intent to possess

that device is an independent felonious intent, allowing the possessor to be

convicted of murder if the device accidentally explodes, killing an unintended

victim. But when, as here, a defendant fires a gun to scare the victim, the intended

harm—that of scaring the victim—is not independent of the greater harm that

occurs when a shot fired with the intent to scare instead results in the victim’s

death.

Nor can an intent to scare a person properly be described as felonious,

because an intent to frighten is not an element of section 246.3, which requires

only that the defendant discharge a firearm with gross negligence. To prove a

violation of section 246.3, the defendant’s intent is irrelevant. Thus, when the jury

in this case was instructed on the elements of section 246.3, it was not told—

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properly so—to decide whether defendant shot Riley with the intent to scare him.

In sum, it makes no sense legally to treat defendant’s alleged intent to scare as

“felonious” when such an intent is legally irrelevant and when the jury never

decided whether he had that intent.

IV

For the reasons given above, I conclude, as the Court of Appeal did, that

the trial court erred in telling the jury it could convict defendant under the second

degree felony-murder rule based on section 246.3’s prohibition against

discharging a firearm with gross negligence. But unlike the Court of Appeal, I

find the error prejudicial.

The trial court’s erroneous instruction on the second degree felony-murder

rule violated the federal Constitution because it misstated the elements of second

degree murder, allowing the jury to convict defendant of that crime without having

to decide whether he acted with malice when he fired the shot that killed Kehinde

Riley. The error requires reversal unless the reviewing court can say beyond a

reasonable doubt that the error was harmless. (Neder v. United States (1999) 527

U.S. 1, 15-20.)

In finding the error harmless, the Court of Appeal here reasoned that the

jury implicitly found that defendant acted with malice in firing at the two fleeing

thieves (Riley and Harris) when it convicted him of assault with a deadly weapon

on Harris. Thus, the Court of Appeal said, the jury necessarily found that

defendant acted with malice when he shot Riley, killing him. I disagree.

A person who kills in the heat of passion or in unreasonable self-defense

lacks malice and is therefore guilty not of murder, but only of voluntary

manslaughter. No court, however, has ever held that either heat of passion or

unreasonable self-defense is a defense to the crime of assault with a deadly

weapon. Thus, the jury here did not implicitly find that defendant acted with

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malice when it convicted him of assault with a deadly weapon on Harris, because

it could have found defendant guilty of that crime even if it believed he fired in the

heat of passion arising from his discovery of the thieves stealing his hubcaps, or

that he fired in the unreasonable belief that he had to shoot at the thieves to protect

himself. As a result, the court’s instruction on the second degree felony-murder

rule was prejudicial error.5

CONCLUSION

I would reverse the judgment of the Court of Appeal, and I would remand

with directions to reverse defendant’s murder conviction.

KENNARD,

J.


5

The dissenting opinions of Justice Werdegar and Brown and the concurring

opinion of Justice Moreno suggest that this court should reconsider the validity of
the second degree felony-murder rule. In light of my conclusion that defendant’s
conviction should be reversed in any event, and because the issue was not raised in
the parties’ briefs or at oral argument, I express no view on this issue.

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DISSENTING OPINION BY WERDEGAR, J.




I respectfully dissent. Reluctantly, I conclude the merger doctrine (People

v. Ireland (1969) 70 Cal.2d 522) that limits second degree felony murder must be

understood to preclude the offense of grossly negligent discharge of a firearm

(Pen. Code, § 246.3) from serving as a predicate felony under the circumstances of

this case. As Justice Kennard demonstrates (dis. opn. of Kennard, J., ante, at pp.

10-11), moreover, we cannot be certain beyond a reasonable doubt (Neder v.

United States (1999) 527 U.S. 1) that the jury did not rely on felony-murder

instructions to convict defendant of second degree murder; defendant’s conviction

should therefore be reversed.

Concurring separately in People v. Hansen (1994) 9 Cal.4th 300, 317-318,

I endorsed the “collateral and independent felonious design” test of People v.

Mattison (1971) 4 Cal.3d 177, 185, and opined that the defendant’s intent to

“intimidate” another was sufficiently independent of the killing to avoid the

merger doctrine in that case. The majority in this case, making a commendable

effort to straighten out a fairly twisted piece of doctrine (see dis. opn. of Brown, J.,

post, at pp. 1-5), returns to the Mattison test the court seemingly abandoned in

Hansen, supra, 9 Cal.4th at page 315, and reasons that defendant’s claimed intent

merely to scare the thieves away was collateral to the resulting homicide. (Maj.

opn., ante, at p. 16.)

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I would like to join in the majority reasoning, which is consistent with my

Hansen concurrence. But sometimes consistency must yield to a better

understanding of the developing law. The anomalies created when assaultive

conduct is used as the predicate for a second degree felony-murder theory (see dis.

opn. of Kennard, J., ante, at pp. 5-8) are too stark and potentially too productive of

injustice to be written off as “characteristic of the second degree felony-murder

rule in general” (maj. opn., ante, at p. 19). It simply cannot be the law that a

defendant who shot the victim with the intent to kill or injure, but can show he or

she acted in unreasonable self-defense, may be convicted of only voluntary

manslaughter, whereas a defendant who shot only to scare the victim is precluded

from raising that partial defense and is strictly liable as a murderer. The

independent and collateral purposes referred to in Mattison must be understood as

limited to nonassaultive conduct. In circumstances like the present, the merger

doctrine should preclude presentation of a second degree felony-murder theory to

the jury.

Justices Brown (dis. opn., post, at pp. 8-10) and Moreno (conc. opn., ante,

at pp. 3-5) question both the foundations of and need in the criminal law for a

nonstatutory second degree felony-murder rule and suggest it may be ripe for

reexamination, as Justice Panelli (People v. Patterson (1989) 49 Cal.3d 615, 641-

642 (conc. & dis. opn.)) and Chief Justice Bird (People v. Burroughs (1984) 35

Cal.3d 824, 852-854 (conc. opn.)) have done in the past. I agree and for these

reasons would also apply the rule narrowly so as not to create an unnecessary

divergence between culpability and punishment.

WERDEGAR, J.

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DISSENTING OPINION BY BROWN, J.

As H. G. Wells’s nameless protagonist trenchantly observed, “the peculiar

sensations of time traveling . . . are excessively unpleasant . . . a feeling . . . of a

helpless headlong motion!” (H. G. Wells, The Time Machine (1986 ed.).) A

court trying to decipher our periodic attempts to tame the “ ‘anachronistic’ ”

(People v. Burroughs (1984) 35 Cal.3d 824, 829, overruled on other grounds in

People v. Blakely (2000) 23 Cal.4th 82), artificial (People v. Washington (1965)

62 Cal.2d 777, 783), and “disfavored” (People v. Henderson (1977) 19 Cal.3d 86,

92, overruled on another ground by People v. Flood (1998) 18 Cal.4th 470) second

degree felony-murder rule could be forgiven for thinking the experience eerily

reminiscent of Wells’s description of time travel. Since we are changing the rules

yet again, and the application of the collateral and independent felonious design

test in a case like this one can only make a bad situation worse, I dissent.

The second degree felony-murder rule has been part of California law for

more than a century and this court has described its function in terms which seem

admirably precise: “The [second degree] felony-murder rule operates . . . to posit

the existence of malice aforethought in homicides which are the direct causal

result of the perpetration or attempted perpetration of all felonies inherently

dangerous to human life . . . .” (People v. Ireland (1969) 70 Cal.2d 522, 538.)

In practice, however, the precision of this verbal formulation is more

apparent than real. It requires the court to determine both how the predicate

felony is to be defined and what threshold of dangerousness is sufficient. Even

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when a court agrees to look at the elements of the felony in the abstract, i.e.,

whether the commission of the crime as defined by the statute poses a danger to

human life (People v. Patterson (1989) 49 Cal.3d 615, 622), reasonable judges can

disagree about the legitimacy of contracting or expanding the statutory definition

of a felony in order to conclude that a particular violation should be deemed

inherently dangerous. (Id. at pp. 631-632 (conc. & dis. opn. of Mosk, J.).)

Though we have been preternaturally aware of the danger of widening the second

degree felony-murder rule “beyond calculation” by fragmenting a defendant’s

course of conduct so that the “rule applies if any segment of [the defendant’s]

conduct may be considered dangerous to life” (People v. Phillips (1966) 64 Cal.2d

574, 583-584), we have not always been able to resist the temptation to “embark

. . . on ‘an uncharted sea of felony murder.’ ” (Patterson, at p. 631 (conc. & dis.

opn. of Mosk, J.).)

Moreover, which felonies are inherently dangerous to human life is not

self-evident. When a homicide results, it is clear that, in the particular

circumstances, the predicate felony was dangerous to human life, but that does not

tell us whether it should be deemed so in the abstract. (See, e.g., People v. Lopez

(1971) 6 Cal.3d 45 [since Pen. Code, § 4532, relating to escape, draws no relevant

distinction between sneaking away and killing a guard to obtain a key, it

proscribes an offense, which considered in the abstract, is not inherently

dangerous to human life]; People v. Henderson, supra, 19 Cal.3d 86 [predicate

felony of false imprisonment, viewed as a whole in the abstract, is not inherently

dangerous to human life]; but see People v. Patterson, supra, 49 Cal.3d 615, 624-

625 [the fact that Health & Saf. Code, § 11352 includes a variety of offenses does

not preclude the court from determining that the “primary element” of furnishing a

dangerous drug is inherently dangerous].)

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Nor does the phrase “inherently dangerous” tell us exactly how dangerous a

felony has to be to justify obviating the malice requirement. Over time, the court

has shifted from a standard that only required a showing that the predicate felony

posed an inherent danger to human life (People v. Poindexter (1958) 51 Cal.2d

142), to one requiring that the predicate felony involve “a substantial risk that

someone will be killed” (People v. Burroughs, supra, 35 Cal.3d at p. 833), and

then to a more recent position that an act is “inherently dangerous” to human life

when there is a high probability that it will result in death (People v. Hansen

(1994) 9 Cal.4th 300, 309; People v. Patterson, supra, 49 Cal.3d at p. 627). In this

case, the majority cites both standards, reasoning that a high probability does not

mean a greater than 50 percent chance. (Maj. opn., ante, at p. 10.)

We are even unable to decide, once and for all, what is the purpose of the

second degree felony-murder rule. We have said the purpose of the rule is simply

to deter persons engaged in felonies from killing negligently or accidentally.

(People v. Satchell (1971) 6 Cal.3d 28, 34, overruled on other grounds in People v.

Flood, supra, 18 Cal.4th 470.) But, we have also intimated that the objective is to

deter the commission of the underlying felonies. (People v. Hansen, supra, 9

Cal.4th at p. 310.) Perhaps as a result of this ambiguity of purpose, we have found

it difficult to articulate a generally applicable merger rule. The merger doctrine as

originally conceived in Ireland precluded application of the second degree

felony-murder rule where the evidence showed the underlying felony was an

integral part of and included in fact within the resulting homicide. (People v.

Ireland, supra, 70 Cal.2d at p. 539.) Again, this is a formulation that results in a

clear rule when an assault with a deadly weapon causes the death of the target of

the assault. But how ought we to address questions of causation and malice when

the defendant’s intent is more ambiguous and the homicide results from reckless,

negligent, or accidental conduct?

3

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The majority opinion goes back in time and applies the “ ‘collateral and

independent felonious design’ ” test we set forth over three decades ago in People

v. Mattison (1971) 4 Cal.3d 177, 185. Mattison was a prison inmate who violated

Penal Code section 347 (felony poisoning) by providing jail-made hooch to a

fellow inmate. The concoction was primarily, if not entirely, methyl alcohol—a

deadly poison when ingested in large quantities. Mattison was not trying to poison

anyone; he furnished the alcohol for personal gain. He argued that the offense of

administering poison with the intent to injure was an integral part of and included

in fact within the offense of murder by poison. We concluded that application of

the felony-murder rule was proper because the predicate felony was committed

with a “ ‘collateral and independent felonious design.’ ” (Mattison, at p. 185.)

For the purposes of the merger doctrine, our decision in Mattison relied on the

Court of Appeal’s opinion in People v. Taylor (1970) 11 Cal.App.3d 57. What the

majority fails to point out is that we examined Mattison and Taylor in People v.

Hansen, supra, 9 Cal.4th 300—our last in-depth look at the merger doctrine—and

expressly rejected the test the majority applies today: We stated, “We decline,

however, to adopt as the critical test determinative of merger in all cases the

following language that appears in Taylor, quoting a decision of a New York

court: that the rationale for the merger doctrine does not encompass a felony

‘ “committed with a collateral and independent felonious design.” ’ [Citations.]

Under such a test, a felon who acts with a purpose other than specifically to inflict

injury upon someone—for example, with the intent to sell narcotics for financial

gain, or to discharge a firearm at a building solely to intimidate the occupants—is

subject to greater criminal liability for an act resulting in death than a person who

actually intends to injure the person of the victim.” (Hansen, at p. 315.) Rather

than rely on that somewhat artificial test, the court focused on not subverting

legislative intent. (Ibid.) Therefore, in reaching our holding in Hansen that the

4

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merger doctrine did not apply to a felony-murder conviction based upon the crime

of discharging a weapon into an inhabited building, we sought to avoid elevating

“all felonious assaults to murder.” (Id. at p. 315.)

Today, the majority already appears to be hedging its bets on the future

application of the collateral and independent felonious design test by

acknowledging that it has “drawbacks” and limiting its application to this

particular case. (Maj. opn., ante, at p. 16 [“Although the collateral purpose

rationale may have its drawbacks in some situations (People v. Hansen, supra, 9

Cal.4th at p. 315), we believe it provides the most appropriate framework to

determine whether, under the facts of the present case, the trial court properly

instructed the jury” (italics added)].)

The most important question, however, remains unaddressed. Why? What

purpose does the second degree felony-murder rule serve that justifies the fitful

and erratic course of our jurisprudence? The ad hoc and post hoc nature of our

deliberations suggests the doctrine is either doing too much or accomplishing

nothing at all.

There is a problem with the subversion of legislative intent rationale, with

its focus on quantitative assessment, which we invoke in tandem with whatever

rule we decide to apply. As the Court of Appeal below stated: “The crux of the

matter under Hansen—subversion of legislative intent—is a function . . . of the

percentage of total homicides that result from the felonious conduct in question.

Since the felony-murder rule eliminates the element of malice otherwise required

for murder under the statutory scheme for punishment of homicides, and since, for

example, the ‘great majority’ of homicides occur in the ‘context of assault’

[citation], allowing felonious assaults to serve as predicates for felony murder

would ‘usurp most of the law of homicide’ [citation] in derogation of legislative

5

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intent. Thus, the critical fact in Hansen was that ‘most homicides do not result

from violations of [Penal Code] section 246.’ ”

In this case, the majority repeats the catechism once again: “[T]he Ireland

rule was intended to avoid elevating every felonious assault that ends in death to

second degree murder, a result that would ‘usurp most of the law of homicide,

relieve the prosecution in the great majority of homicide cases of the burden of

having to prove malice in order to obtain a murder conviction, and thereby

frustrate the Legislature’s intent to punish certain felonious assaults resulting in

death (those committed with malice aforethought, and therefore punishable as

murder) more harshly than other felonious assaults that happened to result in death

(those committed without malice aforethought, and therefore punishable as

manslaughter).’ [Citation.]” (Maj. opn., ante, at p. 14.)

Presumably this means that the second degree felony-murder doctrine

should be applied to all inherently dangerous felonies that do not include malice as

an element unless application of the doctrine would include too great a percentage

of all homicides. This analysis begins with a nonsequitur from which it never

recovers. The merger doctrine applied in this fashion actually ensures the

Legislature’s careful calibration of culpability will be ignored in precisely those

cases where the absence of malice is a critical issue. Thus, in cases involving

intentional assaults—where there will likely be evidence of premeditation and

malice—the People must prove every element of the crime. In cases where

evidence of malice is likely to be absent or highly equivocal, the second degree

felony-murder rule makes proof of malice unnecessary and imposes murder

liability for what might otherwise be manslaughter. It takes no genius to discern

that a rule that relieves the People of the need to prove malice because the

defendant asserts he did not harbor any is problematic. This is the problem we

hinted at in Hansen and then obscured in our quantitative analysis.

6

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We cannot avoid “subverting the legislative intent” by speculating—futilely

and undoubtedly inaccurately—about how many homicides are committed in what

way. This is the legal equivalent of the theological debate about how many angels

can dance on the head of a pin. Our answer will be irrelevant. The problem is:

second degree felony murder as an unconstrained, nonstatutory outlier is

incompatible with the idea of careful gradations of liability. The cases in which

these gradations will matter are the singular, morally ambiguous, and unusual

cases.

In this case, for example, defendant claimed he fired his gun to frighten

away people who were stealing equipment from his vehicle while it was parked in

front of his home. Even after being given the second degree felony-murder

instruction, the jury took six days to find the defendant guilty of murder.

Similarly, in Hansen, the defendant expressed his anger at someone who had

stolen $40 from him during an attempt to buy drugs by firing multiple shots at the

thief’s apartment—which he believed was unoccupied. Tragically, two children

were in the apartment, and one of them was killed. (People v. Hansen, supra, 9

Cal.4th at pp. 305-306.) That jury, too, took six days to reach a verdict, and, in

statements reprised in Justice Mosk’s dissent, strongly criticized the application of

the felony-murder rule, complaining that the law dictated a result the jurors might

otherwise have rejected because they thought he had done something very serious

but “ ‘would not rank him as a cold-blooded killer.’ ” (Id. at p. 322, fn. 4.)

Therefore, in both cases, although the results are tragic, even the judges of this

court could not agree the defendants’ conduct should be deemed so reprehensible

that strict liability is justified.

The Court of Appeal staggers valiantly through a welter of statistics,

concludes that a violation of Penal Code section 246.3 could be charged whenever

a gun is intentionally fired and a death results, and, heaving a sigh after all that

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heavy lifting, gamely concludes that “to preserve malice as an issue in most

homicide cases in accordance with legislative intent, we hold the merger doctrine

precludes a violation of [Penal Code] section 246.3 from serving as a predicate

offense for a charge of felony murder.” The analysis is not compelling, but the

motivation is commendable.

There should not be any nonstatutory crimes in California. (Pen. Code,

§ 6.) Certainly there should be none that thwart specific legislative authorizations.

It is not enough to congratulate ourselves that the Legislature has allowed us to do

so with impunity. It would be remarkable if the Legislature understood the

implications of a doctrine we ourselves cannot satisfactorily explain. It is long

past time for us to stop sending the appellate courts on these bootless expeditions

to try to quantify homicides. To the extent second degree felony murder imposes

strict liability where dangerously reckless conduct would otherwise be

inadequately punished and insufficiently deterred, there may be a class of cases to

which it should be applied. Presumably, the Legislature is capable of defining

what conduct falls in that category. In his dissenting opinion in Patterson, Justice

Panelli stated, “Although courts are often called upon to make policy choices—

and this court has not shirked its responsibility to do so—our mandate to make

policy in this context is not particularly strong. . . . [¶] [¶] . . . Since the rule

permits a court to increase the punishment for certain dangerous crimes, the

temptation to invoke it is great when we are facing . . . social [crises] . . . . I

respectfully suggest that it is the Legislature that has the resources and

constitutional authority to determine and define what conduct is criminal and to set

the punishment for such crimes.” (People v. Patterson, supra, 49 Cal.3d 615,

641-642 (conc. & dis. opn. of Panelli, J.).)

Justice Panelli’s thoughts were echoed by Justice Mosk: “Equally

important is ‘the need for legislative attention to the second degree felony-murder

8

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rule’ (People v. Patterson (1989) 49 Cal.3d 615, 641 . . . .), . . . an artificial

concept of strict criminal liability that ‘ “erodes the relationship between criminal

liability and moral culpability.” ’ (People v. Washington (1965) 62 Cal.2d 777,

783; People v. Satchell (1971) 6 Cal.3d 28, 33.)” (In re Christian S. (1994) 7

Cal.4th 768, 785 (conc. opn. of Mosk, J.).)

Because the second degree felony-murder rule is suspect I believe it would

not be missed if we abandoned it. “The abrogation of the common law second

degree felony-murder rule would not change the result in the majority of homicide

cases. [Citation.] In cases other than first degree felony murders, malice would

remain the essential distinguishing element of murder. [Citations.] As in the past,

malice would be established in one of two ways: (1) when the accused

‘manifest[s] a deliberate intention unlawfully to take away the life of a fellow

creature’ [citation], or (2) when he (a) commits an act which is likely to cause

death, and (b) consciously and unjustifiably disregards the substantial probability

that death will result. [Citations.]. . . [¶] If the trier of fact found malice . . .

section 187 would, as in the past, classify the killing as murder. In such a

situation, a killing which occurs in the course of any inherently dangerous felony

not enumerated in Penal Code section 189 would be murder in the second degree.

[¶] No longer would a killing which occurs during the commission of an

inherently dangerous felony, standing alone, constitute second degree murder.

However, one should not conclude that when death ensues in such a situation, the

commission of a dangerous felony is an irrelevant factor in determining whether or

not the defendant acted with malice. To the contrary, the circumstances of the

crime including the commission of the felony may provide strong circumstantial

evidence that the defendant intended to kill the victim or that he committed an act

in conscious disregard of the substantial probability that death would result.

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[Citation.]” (People v. Burroughs, supra, 35 Cal.3d 824, 852-853 (conc. opn. of

Bird, C.J.).)

Therefore, I respectfully dissent.

BROWN, J.

10

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

Name of Opinion People v. Robertson
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 109 Cal.App.4th 1740
Rehearing Granted

__________________________________________________________________________________

Opinion No. S118034
Date Filed: August 19, 2004
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Julie M. Conger

__________________________________________________________________________________

Attorneys for Appellant:

Juliana Drous, 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, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Laurence
K. Sullivan, Acting Assistant Attorney General, Catherine A. Rivlin, Seth K. Schalit and William M.
Kuimelis, Deputy Attorneys General, for Plaintiff and Respondent.

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

Juliana Drous
214 Duboce Avenue
San Francisco, CA 94103
(415) 863-3580

William M. Kuimelis
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5873

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Opinion Information

Date:	Docket Number:
Thu, 08/19/2004	S118034

Disposition
Aug 19 2004	Opinion: Affirmed

Dockets
Aug 6 2003	Petition for review filed   by Respondent People
Aug 7 2003	Record requested
Aug 8 2003	Petition for review filed   by counsel for appellant (Quincy Robertson).
Aug 19 2003	Received Court of Appeal record   file jacket/briefs/sealed envelope/one box
Oct 1 2003	Petition for Review Granted (criminal case)   (PETITIONS) The issue to be briefed and argued is limited to the following: Does the merger doctrine as refined in People v. Hansen (1994) 9 Cal.4th 300 preclude use of discharge of a firearm in a grossly negligent manner (? 246.3) as the predicate crime for purposes of second-degree felony murder? Assuming so, did the Court of Appeal properly conclude the instructional error was harmless? Votes: George, C.J., Baxter, Chin and Brown, JJ.
Oct 21 2003	Counsel appointment order filed   Upon request of appellant for appointment of counsel, Juliana Drous 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.
Oct 29 2003	Request for extension of time filed   Counsel for respondent asking for a 30-day extension to and including December 1, 2003 to file Respondent's Opening Brief on the Merits.
Oct 29 2003	Motion filed (in non-AA proceeding)   By counsel for Respondent {The People} to Direct the Sequence for Filing Briefs.
Oct 30 2003	Opposition filed   By counsel for appellant to Motion to Direct the Sequence for Filing Briefs.
Nov 7 2003	Order filed   Pursuant to Rule 29.1, Subdivision (a)(6) of the California Rules of Court, the people of the State of California are designated as petitioner in this matter. The request of petitioner, the People of the State of California, for an extension of time until December 1, 2003 in which to file their opening brief, is granted. Appellant must serve and file an answer brief in this court within 30 day after petitioner's opening brief is served and filed. Petitioner may serve and file a reply brief within twenty days thereafter.
Dec 1 2003	Opening brief on the merits filed   By counsel for Respondent {The People}.
Dec 1 2003	Request for judicial notice filed (in non-AA proceeding)   By Respondent {The People}.
Dec 22 2003	Request for extension of time filed   By counsel for appellant {Quincy Robertson} asking for a 30-day extension to and including January 30, 2004 to file appellant's answer brief on the merits.
Dec 31 2003	Extension of time granted   To January 30, 2004 to file Appellant's Answer Brief on the Merits.
Jan 30 2004	Answer brief on the merits filed   By appellant {Quincy Robertson}.
Feb 19 2004	Request for extension of time filed   by respondent The People, asking for a 30-day extension to March 19, 2004 to file respondent's reply brief on the merits.
Feb 25 2004	Extension of time granted   To March 12, 2004 to file respondent's reply brief on the merits.
Mar 12 2004	Reply brief filed (case fully briefed)   By Respondent {The People}.
Apr 2 2004	Received:   People's exhibits 37 A & 45 A from the Alameda County Superior Court.
Apr 28 2004	Case ordered on calendar   5-24-04, 9am, SF.
May 13 2004	Request for judicial notice granted   The request for Judicial Notice filed on December 1, 2003.
May 24 2004	Cause argued and submitted
Aug 19 2004	Opinion filed: Judgment affirmed in full   Majority Opinion by George, CJ. ----- Joined by Baxter, Chin and Moreno, JJ. Concurring Opinion by Moreno, J. Dissenting Opinion by Kennard, J. Dissenting Opinion by Werdegar, J. Dissenting Opinion by Brown, J.
Oct 13 2004	Compensation awarded counsel   Atty Drous
Nov 4 2004	Remittitur issued (criminal case)
Nov 4 2004	Received:   receipt for remittitur from 1 DCA Div. 4

Briefs
Dec 1 2003	Opening brief on the merits filed
Jan 30 2004	Answer brief on the merits filed
Mar 12 2004	Reply 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