People v. Chun

BAXTER, J., Concurring and Dissenting.

I concur in the majority’s decision to reaffirm the constitutional validity of the long-standing second degree felony-murder rule. (Maj. opn., ante, at pp. 1187-1188.) Ever since the Penal Code 1 was enacted in 1872, and going back even before that, to California’s first penal law, the Crimes and Punishments Act of 1850 (Stats. 1850, ch. 99, p. 229), the second degree felony-murder rule has been recognized as a rule for imputing malice under the statutory definition of implied malice (§ 188) 2 where the charge is second degree murder. (Maj. opn., ante, at pp. 1184-1188.) As the majority explains, “The willingness to commit a felony inherently dangerous to life is a circumstance showing an abandoned and malignant heart. The second degree felony-murder rule is based on statute and, accordingly, stands on firm constitutional ground.” (Maj. opn., ante, at pp. 1187-1188.)

Although the majority reaffirms the constitutional validity of the second degree felony-murder rule, it goes on to render the rule useless in this and future cases out of strict adherence to the so-called “merger doctrine” announced in People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ] (Ireland). Under the merger doctrine, no assaultive-type felony can be used as a basis for a second degree felony-murder conviction. The single rationale given in Ireland for the merger doctrine was that to allow assaultive-type felonies to serve as a basis for a second degree felony-murder conviction “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... a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law.” (Id. at p. 539.)

*1207 In the 40 years since the Ireland court announced its sweeping “merger doctrine,” this court has struggled mightily with its fallout in an attempt to redefine the contours of the venerable second degree felony-murder rule. The history of our “ ‘muddled’ ” (maj. opn., ante, at p. 1189) case law on the subject is accurately recounted in painstaking detail in the majority opinion. (Id. at pp. 1188-1201.) Two decisions in particular are noteworthy here.

In People v. Hansen (1994) 9 Cal.4th 300 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ] (Hansen), we concluded that maliciously and willfully shooting at an inhabited dwelling in violation of section 246, “involves a high probability that death will result and therefore is an inherently dangerous felony ... for purposes of the second degree felony-murder doctrine.” (Hansen, at p. 309.) Hansen explained that, “application of the second degree felony-murder rule to a homicide resulting from a violation of section 246 directly would serve the fundamental rationale of the felony-murder rule—the deterrence of negligent or accidental killings in the course of the commission of dangerous felonies. The tragic death of innocent and often random victims, both young and old, 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. By providing notice to persons inclined to willfully discharge a firearm at an inhabited dwelling—even to those individuals who would do so merely to frighten or intimidate the occupants, or to ‘leave their calling card’—that such persons will be guilty of murder should their conduct result in the all-too-likely fatal injury of another, the felony-murder rule may serve to deter this type of reprehensible conduct, which has created a climate of fear for significant numbers of Californians even in the privacy of their own homes.” (Hansen, at pp. 310-311.)

I signed the majority opinion in Hansen , and continue to find that decision well reasoned and most directly on point in the matter now before us. 3 I would follow Hansen and conclude the jury below was properly instructed on second degree felony murder based on defendant’s commission of the inherently dangerous felony of shooting at an occupied vehicle in violation of section 246 and the inference of malice that follows therefrom. The majority, *1208 in contrast, rejects the analysis and holding in Hansen and expressly overrules it. (Maj. opn., ante, at pp. 1198-1199.)

In People v. Robertson (2004) 34 Cal.4th 156, 166 [ 17 Cal.Rptr.3d 604 , 95 P.3d 872 ] (Robertson), we again considered whether the trial court had properly instructed the jury on second degree felony murder, this time based on the felony of discharging a firearm in a grossly negligent manner. (§ 246.3.) The defendant in Robertson claimed he fired his gun “upwards into the air” merely intending to “ ‘scare people away.’ ” (Robertson, supra, 34 Cal.4th at p. 162 .) The Robertson majority rejected (although did not overrule) the rationale of Hansen, supra, 9 Cal.4th 300, and went on to resurrect and apply the so-called “collateral purpose” rule derived from two earlier decisions: People v. Mattison (1971) 4 Cal.3d 177 [ 93 Cal.Rptr. 185 , 481 P.2d 193 ] (Mattison) and People v. Taylor (1970) 11 Cal.App.3d 57 [ 89 Cal.Rptr. 697 ]. Briefly, Robertson concluded that, under the collateral purpose rule, tire merger doctrine did not bar a second degree felony-murder instruction based on the violation of section 246.3. (Robertson, at p. 160.) The “collateral purpose” rule can be summarized as a test that reaches a compromise on the all-or-nothing approach taken in Ireland regarding assaultive-type felonies and their nonavailability as a basis for second degree felony-murder treatment. Under the collateral purpose rule or test, application of the second degree felony-murder rule is proper only where the underlying felony, although assaultive in nature, is nonetheless committed with a “ ‘collateral and independent felonious design.’ ” (Mattison, supra, 4 Cal.3d at p. 185; see Taylor, supra, 11 Cal.App.3d at p. 63 .)

I signed the majority opinion in Robertson as well, but I have since come to appreciate that the collateral purpose rule on which it relied is unduly deferential to Ireland’s flawed merger doctrine. The majority itself points to several serious concerns raised in the wake of Robertson’s reliance on the collateral purpose rule in its effort to mitigate the harsh effects of Ireland’s all-or-nothing merger doctrine. (Maj. opn., ante, at pp. 1199-1200.) Nonetheless, it can fairly be observed that the decision in Robertson , right or wrong, did represent a compromise, for under its holding inherently dangerous felonies, though they be of the assaultive type, could still be used as a basis for second degree felony-murder rule treatment as long as a “collateral purpose” for the commission of such a felony could be demonstrated. (Robertson, supra, 34 Cal.4th at p. 160 .)

The majority, in contrast, rejects the analysis and holding of Robertson and expressly overrules it along with our earlier decision in Hansen . (Maj. opn., ante, at p. 1200.) The majority, to put it bluntly, is unwilling to ameliorate the harsh effects of Ireland’s merger doctrine. The majority instead broadly holds that all felonies that are “assaultive in nature” (ibid.) henceforth may not *1209 be used as a basis for a second degree felony-murder prosecution. In short, this court’s various attempts over the course of several decades to salvage the second degree felony-murder rule in the wake of Ireland’s merger doctrine, and to ameliorate the harsh effects of that all-or-nothing rule, have been wiped clean from the slate. The majority has effectively returned the law to where it stood 40 years ago, just after Ireland was decided. I cannot join in the majority’s wholesale capitulation to such a seriously flawed decision.

In the end, this case presented us with a clear opportunity to finally get this complex and difficult issue right. The majority’s recognition and unequivocal pronouncement, in part II.A. of its opinion—that the second degree felony-murder rule is simply a rule for imputing malice under section 188— furnishes the missing piece to this complex and confusing legal jigsaw puzzle. With that clear pronouncement of the second degree felony-murder rule’s true nature and function firmly in hand, I would go on to reach the following logical conclusions with regard to the long-standing tension between that rule and Ireland’s merger doctrine.

First, when a homicide has occurred during the perpetration of a felony inherently dangerous to human life, a jury’s finding that the perpetrator satisfied all the elements necessary for conviction of that offense, without legal justification or defense, is a finding that he or she acted with an “abandoned and malignant heart” (i.e., acted with malice) within the meaning of section 188. Put in terms of the modem definition of implied malice, where one commits a felony inherently dangerous to human life without legal justification or defense, then under operation of the second degree felony-murder rule, a homicide resulting therefrom is a killing “ ‘ “proximately resulting] from an 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.” ’ ” (Dellinger, supra, 49 Cal.3d at p. 1218.)

Once it is understood and accepted that the second degree felony-murder rale is simply a rule for imputing malice from the circumstances attending the commission of an inherently dangerous felony during which a homicide occurs, no grounds remain to support the sole rationale offered by the Ireland court for the merger doctrine—that use of an assaultive-type felony as the basis for a second degree felony-murder instruction “effectively precluded] the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault.” (Ireland, supra, 70 Cal.2d at p. 539 .) The majority’s holding in part II.A. of its opinion makes clear it understands and accepts that the second degree felony-murder rale is but a means by which juries impute malice under the *1210 Legislature’s statutory definition of second degree implied malice murder. The majority’s holding in part II.B. of its opinion nonetheless fails to follow through and reach the logical conclusions to be drawn from the first premise, and instead simply rubberstamps the Ireland court’s misguided belief that the second degree felony-murder rule improperly removes consideration of malice from the jury’s purview.

Second, when a jury convicts of second degree murder under the second degree felony-murder rule, it has found the statutory element of malice necessary for conviction of murder. (§§ 187, 188.) Hence, there are no constitutional concerns with regard to whether the jury is finding all the elements of the charged murder, or is not finding all the “facts” that can increase punishment where the defendant is convicted of second degree murder in addition to being convicted of the underlying inherently dangerous felony. (See Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ].)

Third, our recognition today that the second degree felony-murder rule is simply a rule under which the jury may impute malice from the defendant’s commission of inherently dangerous criminal acts, thereby undercutting the very rationale given by the Ireland court for the merger doctrine, should logically eliminate any impediment to the use of inherently dangerous felonies—such as the violation of section 246 (maliciously and willfully shooting at an occupied vehicle) at issue in this case—as the basis for an instruction on second degree felony murder.

The majority’s holding, in contrast, works just the opposite result. Prior to this court’s decision in Ireland , this court had already restricted the felonies that could support a second degree felony-murder conviction to those “inherently dangerous to human life.” (People v. Ford (1964) 60 Cal.2d 772, 795 [ 36 Cal.Rptr. 620 , 388 P.2d 892 ].) The justification for the imputation of implied malice under these circumstances is 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 (1989) 49 Cal.3d 615, 626 [ 262 Cal.Rptr. 195 , 778 P.2d 549 ].) Hence, whatever felonies may remain available for use in connection with the second degree felony-murder rule after today’s holding will both have to qualify as inherently dangerous felonies (Ford, at p. 795), and not be “assaultive in nature” or contain any elements that have “an assaultive aspect.” (Maj. opn., ante, at p. 1200.) I fail to see how the second degree felony-murder rule, thus emasculated, will continue to serve its intended purposes of “ ‘deter[ring] felons from killing negligently or accidentally’ ” while “deter[ring] commission of the inherently dangerous felony itself.” (Maj. opn., ante, at p. 1198.)

*1211 In sum, the majority has turned the second degree felony-murder rule on its head by excluding all felonies that are “assaultive in nature” (maj. opn., ante, at p. 1200), including a violation of section 246, in whatever form, from future use as a basis for second degree felony-murder treatment. In reaching its holding, the majority has rejected decades of sound felony-murder jurisprudence in deference to Ireland’s merger doctrine, a doctrine grounded on a single false premise, that use of the second degree felony-murder rule improperly insulates juries from the requirement of finding malice and thereby constitutes unfair “bootstrapping.” (Ireland, supra, 70 Cal.2d at p. 539 .)

In concluding that Ireland’s merger doctrine trumps the second degree felony-murder rule in this and all future cases involving “assaultive-type” felonies (maj. opn., ante, at p. 1178), the majority professes to heed the concerns raised by some members of this court in past decisions that have addressed the tension between the second degree felony-murder rule and the merger doctrine. {Id. at pp. 1194-1195.) I do not believe those concerns justify the result reached by the majority in this case.

For example, in Robertson, supra, 34 Cal.4th 156 , the issue was whether the trial court properly instructed the jury on second degree felony murder based on discharging a firearm in a grossly negligent manner. (§ 246.3.) In that case the defendant claimed he had heard a sound resembling “either a car backfire or the discharge of a firearm,” and merely “fired two warning shots” “upwards into the air” in order to “ ‘scare people away from my domain.’ ” (Robertson, at p. 162.) The physical evidence was otherwise; the defendant had fired at least three shots, two of which hit a car parked across the street “two feet above ground level.” (Ibid.) The homicide victim, found 50 yards from where the defendant was standing when he fired his weapon, died from a bullet wound to the back of his head. (Ibid.) The majority in Robertson concluded Ireland’s merger doctrine did not bar a second degree felony-murder instruction. (Robertson, at p. 160.)

As the majority observes, Justice Werdegar dissented in Robertson , arguing that the underlying felony merged with the resulting homicide. She wrote: “The anomalies created when assaultive conduct is used as the predicate for a second degree felony-murder theory [citation] are too stark and potentially too productive of injustice to be written off as ‘characteristic of the second degree felony-murder rule in general’ ([ Robertson, supra, 34 Cal.4th] at p. 173). 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 *1212 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.” (Robertson, supra, 34 Cal.4th at p. 185 (dis. opn. of Werdegar, J.).)

I appreciate and share the concerns voiced by Justice Werdegar in her dissent in Robertson . At the threshold, I fail to see why a bald claim by the defendant that he fired his gun “upwards into the air” intending merely to “ ‘scare people away’ ” (Robertson, supra, 34 Cal.4th at p. 162 ), a claim that was flatly contradicted by all the physical evidence in the case, including the dead victim who was found 50 yards away felled by a single shot to the back of his head, should be found controlling on the matter of what theory or theories of murder were rightfully available to the prosecution in trying the case. (In re Christian S. (1994) 7 Cal.4th 768, 783 [ 30 Cal.Rptr.2d 33 , 872 P.2d 574 ] (Christian S.) [trial courts need only instruct on defenses supported by substantial evidence].)

The particular facts of Robertson aside, I agree with Justice Werdegar that the defendants are entitled to present all viable defenses supported by substantial evidence, like imperfect self-defense, in a second degree murder prosecution, whether it be tried on a theory of straight implied malice second degree murder or under the second degree felony-murder rule. But as we recognize today, the second degree felony-murder rule is simply a common law rule for imputing malice, a required element of murder under sections 187 and 188. Understood in that way, there is nothing in the rule, or in relevant murder statutes, to prevent a defendant from establishing that, even where the circumstances show he satisfied all the elements of an alleged inherently dangerous felony during which a homicide occurred, his actual state of mind nonetheless precludes drawing an inference of malice from those attending circumstances.

Under the modem construction of the statutory definition of implied malice (§ 188), “malice is presumed when ‘ “the killing proximately resulted from an 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.” ’ ” (Dellinger, supra, 49 Cal.3d at p. 1218, italics added; see also People v. Sedeno, supra, 10 Cal.3d at p. 719.) Notwithstanding a charge that a homicide occurred during the commission of an underlying inherently dangerous felony, a finding of second degree felony murder could still be negated by substantial evidence establishing unreasonable or imperfect self-defense, thereby reducing the murder to voluntary manslaughter (see Christian S., supra, 7 Cal.4th at p. 783 ), where the defendant, given his conduct and state of mind under the circumstances surrounding the crimes, is shown not to have actually harbored *1213 a “ ‘conscious disregard for life.’ ” (Dellinger, at p. 1218.) Even a defendant who claims he “shot into the air” to scare away the homicide victim in an unreasonable or mistaken belief he had to do so in order to defend himself might successfully avoid an imputed inference of malice, and conviction under the second degree felony-murder rule, if substantial evidence bears out his claim and establishes he did not act with a conscious disregard for life.

One might reasonably speculate that if the Ireland court had had the benefit of our modem jurisprudence on second degree implied malice murder, including decisions like Christian S., supra, 7 Cal.4th 768 , and People v. Flannel (1979) 25 Cal.3d 668 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ], which only firmly established the defense of unreasonable or imperfect self-defense years after Ireland was decided (see Flannel , at p. 683), the concerns that led the Ireland court to fashion its sweeping merger doctrine could have been alleviated.

In conclusion, I concur in the majority’s holding that the second degree felony-murder mle is a mle for imputing malice, and as such, withstands constitutional scrutiny. (Maj. opn., part HA., ante, at pp. 1180-1188.) I respectfully dissent from the analysis and conclusions reached by the majority with regard to Ireland’s merger doctrine. (Maj. opn., part H.B., ante, at pp. 1188-1201.) I would follow the well-reasoned decision in Hansen, supra, 9 Cal.4th 300, and conclude that the jury below was properly instructed on second degree felony murder based on defendant’s commission of the inherently dangerous felony of shooting at an occupied vehicle in violation of section 246.

All further statutory references are to the Penal Code.

Section 188 provides that malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.) We have, however, recognized that “[t]he statutory definition of implied malice has never proved of much assistance in defining the concept in concrete terms.” (People v. Dellinger (1989) 49 Cal.3d 1212, 1217 [ 264 Cal.Rptr. 841 , 783 P.2d 200 ] (Dellinger).) Under the modern understanding of the “abandoned and malignant heart” definition of implied malice, malice is presumed when “ 1 “the killing proximately resulted from an 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.” ’ ” (Id. at p. 1218; see also People v. Sedeno (1974) 10 Cal.3d 703, 719 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ]; People v. Phillips (1966) 64 Cal.2d 574, 587 [ 51 Cal.Rptr. 225 , 414 P.2d 353 ].)

The case before us involves a homicide resulting from defendant shooting at an occupied vehicle in violation of section 246. In Hansen , we held that shooting at an “inhabited dwelling house” in violation of that same section (§ 246) is an act inherently dangerous to human life even though the house is not actually occupied at the time of the shooting. ( Hansen, supra, 9 Cal.4th at pp. 309-311.) We then explained that “[t]he nature of the other acts proscribed by section 246 reinforces the conclusion that the Legislature viewed the offense of discharging a firearm at an inhabited dwelling as posing a risk of death comparable to that involved in shooting at an occupied building or motor vehicle.” (Id. at p. 310.) The majority agrees that shooting at an occupied vehicle, as occurred here, is an inherently dangerous felony. (Maj. opn., ante, at p. 1188.) So do I.