explaining that, after the prosecution’s rebuttal, “the trial court raised the issue of whether the information had provided defendant with sufficient notice of the attempted rape basis of the special circumstance”
How later courts described this case
- explaining that, after the prosecution’s rebuttal, “the trial court raised the issue of whether the information had provided defendant with sufficient notice of the attempted rape basis of the special circumstance”
- stating that “intent to kill” and “specific intent to kill” are “readily understandable”
- disapproved on another ground in People v. Moon (2005) 37 Cal.4th 1, 17 [32 Cal.Rptr.3d 894, 117 P.3d 591]
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by People v. Moon, 32 Cal. Rptr. 3d 894 (2005)
10 Cal.4th 1, 30 , overruled on another ground in People v. Moon (2005) 37 Cal.4th 1, 17
The opinion
MOSK, J.
I concur in the judgment. After review, I have found no reason to do otherwise.
I also concur generally in Justice Werdegar’s opinion for the court. It fully addresses, and soundly rejects, all of defendant’s claims.
I write separately to express my view that the time has come to revisit the question what mental state is required for first degree felony murder.
Since “[i]n California all crimes are statutory and there are no common law crimes” (In re Brown (1973) 9 Cal.3d 612, 624 [ 108 Cal.Rptr. 465 , 510 P.2d 1017 ]; see Pen. Code, § 6), first degree felony murder is purely a creature of statute. The defining provision is Penal Code section 189: “All murder . . . which is committed in the perpetration of, or attempt to perpetrate,” certain enumerated felonies “is murder of the first degree.” As for mental state, there is no requirement of intent to kill, deliberation, or premeditation (see Pen. Code, § 189) or even of malice aforethought (People v. Hansen (1994) 9 Cal.4th 300, 319 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ] (conc. & dis. opn. of Mosk, J.); see generally, People v. Dillon (1983) 34 Cal.3d 441, 472-476 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ] (plur. opn. by Mosk, J.); accord, id. at p. 490 (conc. opn. of Kaus, J.)). All that is demanded in this regard is the state of mind belonging to the underlying felony. To the extent that such decisions as People v. Sears (1965) 62 Cal.2d 737, 745 [ 44 Cal.Rptr. 330 , 401 P.2d 938 ], overruled on another point, People v. Cahill (1993) 5 Cal.4th 478, 509-510 , footnote 17 [ 20 Cal.Rptr.2d 582 , 853 P.2d 1037 ], and its progeny hold or state otherwise, they are unsound. Moreover, to the extent that they use the terms “specific intent” and “general intent,” which evolved as labels to identify particular crimes as, respectively, admitting or not admitting the defense of voluntary intoxication (People v. Hood (1969) 1 Cal.3d 444, 455-456 [ 82 Cal.Rptr. 618 , 462 P.2d 370 ]; see People *84 v. Whitfield (1994) 7 Cal.4th 437, 463 [ 27 Cal.Rptr.2d 858 , 868 P.2d 272 ] (conc. & dis. opn. of Mosk, J.)), and which are in themselves “notoriously difficult ... to define and apply” (People v. Hood, supra, 1 Cal.3d at p. 456 ), they have proved to be mischievous. They should no longer be followed.
Appellant’s petition for a rehearing was denied July 19, 1995.