People v. Guest

CHÍEF JUSTICE CLARK, concurring in part and dissenting in part:

I concur in the majority’s affirmation of the judgment of the circuit court as to the defendant’s convictions. However, I dissent from that part of the majority opinion affirming the defendant’s sentence of death because I do not believe that the murder statutes of Illinois and California are substantially similar for the purpose of imposing the death penalty under the multiple-murder, aggravating-factor provision of our Illinois murder statute.

Since the defendant in this case was convicted of second-degree murder, I believe the logical test of similarity is whether any defendant convicted of second-degree murder in California would also be found guilty of murder in Illinois under our statute. Since I believe that not all defendants convicted of second-degree murder in California would be found to have the requisite mental state to be found guilty of murder in Illinois, I respectfully dissent.

A defendant can be found guilty of second-degree murder in California without the prosecution having to prove that the killing was “ ‘deliberate and premeditated,’ or that the defendant maturely and meaningfully reflected upon the gravity of his or her act.” (Cal. Penal Code sec. 189 (West 1981).) In People v. Gonzales (1970), 4 Cal. App. 3d 593 , 84 Cal. Rptr. 863 , the California Court of Appeals quoted from the case of People v. Butts (1965), 236 Cal. App. 2d 817 , 46 Cal. Rptr. 362 , wherein it is stated:

“ ‘Conviction of second degree murder requires no proof of premeditation or even of actual intent to take life; rather, the malice (intent) necessary to constitute second degree murder may be implied from commission of an unlawful act without sufficient provocation “or when the circumstances attending the killing show an abandoned and malignant heart.” (Citations.)’ (p. 827, 46 Cal. Rptr. 362 .)” 4 Cal. App. 3d 593, 602 , 84 Cal. Rptr. 863, 868 .

The majority states that “the meaning given to express malice under the California murder statutes is virtually identical to the meaning given to intent as found in section 9—1(a)(1) of our murder statute.” (115 Ill. 2d at 95.) I do not disagree with this statement. The majority also reasons that “[i]t is also clear that the meaning given to implied malice under California law closely tracks the meaning given to knowledge under Illinois law.” (115 Ill. 2d at 96.) It is at this point that I begin to disagree with the majority’s reasoning. Besides the obvious language difference in the two statutes, a person can be found guilty of second-degree murder in California under California’s felony-murder provision in circumstances where the same person would not be found guilty of murder in Illinois under any of our applicable sections.

It is clear that some second-degree murder convictions in California are based on the defendant knowing that his conduct endangered the life of another. (See People v. Watson (1981), 30 Cal. 3d 290 , 179 Cal. Rptr. 43 , 637 P.2d 279 .) This requirement is similar to our section 9—l(a)(2), which requires that a defendant “know[] that [his or her] acts create a strong probability of death or great bodily harm.” (Ill. Rev. Stat. 1985, ch. 38, par. 9—l(a)(2).) However, California law recognizes another type of second-degree murder based on a second-degree felony-murder doctrine. In People v. Mclntire (1931), 215 Cal. 50 , 1 P.2d 443 , no knowledge was required on the defendant’s part because under California law the defendant was engaged in the commission of a felony-driving a car while intoxicated. Later, in People v. Phillips (1966), 64 Cal. 2d 574 , 51 Cal. Rptr. 225 , 414 P.2d 353 , the court held that the doctrine only applies when the underlying felony is “inherently dangerous.” However, knowledge still is not an element of second-degree felony murder, as is required under our section 9—l(a)(2). Moreover, our felony-murder provision, section 9—1(a)(3), requires that the underlying felony be a “forcible felony.” A forcible felony is one which “involves the use or threat of physical force or violence against any individual.” (Ill. Rev. Stat. 1985, ch. 38, par. 2—8.) It is clear that driving while intoxicated, as was the case in Mclntire, would not be a forcible felony in Illinois.

The State argued that the defendant was not convicted under the second-degree felony-murder doctrine and therefore the differences between Illinois’ and California’s felony-murder provisions are irrelevant. However, it is the statutes that are to be compared for their similarity, not the actual act which led to the defendant’s conviction.

If defendant Mclntire came to Illinois after being convicted of second-degree murder in California and was convicted of murder under our murder statute, he would be eligible for the death penalty based on a crime in California which would be no more than reckless homicide in Illinois. (Ill. Rev. Stat. 1985, ch. 38, par. 9—3.) The factual scenario of a case like Mclntire demonstrates the substantial difference between the Illinois and California murder statutes.

The majority also states that the difference between Illinois and California in regard to the imposition of the death penalty subsequent to conviction is not relevant to deciding whether our multiple-murder, aggravating-factor provision applies. (115 Ill. 2d at 100.) I believe that the fact that a second-degree murder conviction will not justify imposition of the death penalty in California (Cal. Penal Code sec. 190.1 (West Supp. 1986)) is relevant in a. case where we are imposing death on the basis of that conviction.

For the above-stated reasons, I respectfully dissent.

GOLDENHERSH and SIMON, JJ„ join in this partial concurrence and partial dissent.