Taylor v. Superior Court

MOSK, J.

I dissent.

While reserving my views on the soundness of the holding in People v. Washington (1965) 62 Cal.2d 777 [ 44 Cal.Rptr. 442 , 402 P.2d 130 ], I agree with Justice Peters that the factual distinction upon which the majority opinion in the present case is based is without legal significance.

In every robbery in which the criminal aims a gun at his victim as he *593 demands his money or property, the very act of pointing the weapon is an implied but unmistakable conditional threat that it will be used if the demands are not promptly met. Under the circumstances, such a deliberate gesture can have no other meaning. Nothing is added, therefore, when the robber makes the threat explicit by concluding his demands with the qualifying phrase, “or I’ll shoot”—or any variation on that theme, e.g., “or I’ll kill you,” “or I’ll blow your head off,” “or we’ll have an execution right here.” The latter two formulations were used in the case at bar; dispassionately viewed, however, they are merely vigorous semantic descendants of the classic highwayman’s command, “Your money or your life!” Dick Turpin’s victims might be shocked by the graphic explicitness of contemporary intimidation, but they would easily recognize its traditional meaning.

Fundamental principles of criminal responsibility dictate that the defendant be subject to a greater penalty only when he has demonstrated a greater degree of culpability. To ignore that rule is at best to frustrate the deterrent purpose of punishment, and at worst to risk constitutional invalidation on the ground of invidious discrimination. We cannot, of course, ascribe such an intent to the Legislature. In my view, a robber who simply articulates one of the foregoing conditional threats is in no way more culpable than one who remains silent while brandishing a gun in his victim’s face. The reason for this is apparent: every such conditional threat—whether express or implied—is inherent in the commission of the robbery itself. Indeed, the crime cannot be committed without making or carrying out a threat of violence: it is code law that “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Italics added; Pen. Code, § 211.) Fear is generated by the menace of such force, e.g., by a threat to commit personal violence upon the victim unless he complies with the robber’s demands. The threat thus has no independent significance, no purpose other than to facilitate the commission of the robbery. It is, in short, a necessary incident of the crime.

In this regard the conditional threat is similar to the brief movements which virtually every robber finds it necessary to compel his victims to perform, such as going to the safe or cash register, lying on the floor, or entering a back room while the getaway is in progress. Yet in People v. Daniels (1969) 71 Cal.2d 1119, 1139 [ 80 Cal.Rptr. 897 , 459 P.2d 225 ], we recently held that the statute defining the crime of kidnaping to commit robbery was not intended to include robberies “in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.” By the same token, the conditional threats uttered in the case at bar were merely incidental to the robbery and did not *594 substantially increase the risk of harm to the victims. I cannot square the present majority opinion with the spirit of our decision in Daniels .

This is not to maintain that no conduct short of actually pulling the trigger first will support a finding of implied malice aforethought. Thus the true disinction to be drawn in robbery cases is not between an express and an implied conditional threat, but between a conditional threat—whether express or implied—and an unconditional threat to kill. For example, after seizing the property the robber might voice an intent to shoot his victims on the spot to prevent their giving an alarm or later identifying him; or, being surprised by the police and having no hope of escape, a desperate criminal might announce that rather than surrender he will take his own life and that of his hostages as well. Manifestly such a threat greatly increases the risk of harm over and above that which is present in the usual robbery situation, and hence demonstrates a greater degree of culpability on the part of the wrongdoer. The consequences of creating this risk are likewise predictable: if one of the victims has access to a hidden weapon, he will be driven to use it in a last-ditch attempt to prevent his assailant from carrying out his unconditional threat to kill. Such a threat, accordingly, may fairly be said to “initiate” the ensuing gun battle just as surely as if the robber had been the first to fire.

Other examples appear in the cases: implied malice has been found, in effect, when the robber used his victim as a shield or hostage (cf. People v. Reed (1969) 270 Cal.App.2d 37 [ 75 Cal.Rptr. 430 ]) or committed some other highly reckless act such as pistol-whipping his victim with a loaded gun (In re Le Caille, Crim. 14525, petition for habeas corpus denied by minute order of May 27, 1970) or seizing the barrel of a shotgun held at the ready by a police officer (Brooks v. Superior Court (1966) 239 Cal.App.2d 538 [ 48 Cal.Rptr. 762 ]). These events substantially increased the risk of harm to all present, and may well be deemed “intentional acts ... committed with conscious disregard for life, and likely to result in death.” (Majority opinion, ante, p. 583)

To list such examples, however, is vividly to delineate the gulf between them and the traditional commands made in the course of the otherwise uneventful holdup. For the reasons stated, I conclude that a robber who articulates such conditional threats does not, by that act alone, engage in a greater degree of antisocial conduct than his more taciturn companions in arms, nor does he manifest implied malice aforethought as that concept has been defined in our decisions. For lack of that essential element,, the murder charge against the defendants in the case at bar should fall.