“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.’”
How later courts described this case
- “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.’”
- felony of negligent discharge of a firearm did not merge where the defendant fired into the air to frighten away a group of men
- either substantial risk or high probability
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by People v. Chun, 45 Cal. 4th 1172 (2009)
34 Cal.4th 156, 164 , overruled in People v. Chun (2009) 45 Cal.4th 1172, 1201
The opinion
WERDEGAR, J., Dissenting.
I respectfully dissent. Reluctantly, I conclude the merger doctrine (People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. *185 188 , 450 P.2d 580 ]) 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 p. 184), moreover, we cannot be certain beyond a reasonable doubt (Neder v. United States (1999) 527 U.S. 1 [ 144 L.Ed.2d 35 , 119 S.Ct. 1827 ]) 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 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ], I endorsed the “collateral and independent felonious design” test of People v. Mattison (1971) 4 Cal.3d 177, 185 [ 93 Cal.Rptr. 185 , 481 P.2d 193 ], 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. 186-188), 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. 171.)
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. 180-182) 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. 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 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. 191-192) and Moreno (conc, opn., ante, at pp. 175-176) 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 [ 262 Cal.Rptr. 195 , 778 P.2d 549 ] (conc. & *186 dis. opn.)) and Chief Justice Bird (People v. Burroughs (1984) 35 Cal.3d 824, 852-854 [ 201 Cal.Rptr. 319 , 678 P.2d 894 ] (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.