# People v. Robertson

> California Supreme Court · August 19, 2004 · 17 Cal. Rptr. 3d 604

URL: https://www.frixlaw.com/law-library/cases/9788603

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. QUINCY ROBERTSON, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 19, 2004
- **Citations:** 17 Cal. Rptr. 3d 604; 34 Cal. 4th 156; 2004 Daily Journal DAR 10310; 95 P.3d 872; 2004 Cal. Daily Op. Serv. 7682; 2004 Cal. LEXIS 7589
- **Precedential status:** Published
- **Opinion:** Dissent by Werdegar
- **Judges:** George, Moreno, Kennard, Werdegar, Brown
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by People v. Chun, 45 Cal. 4th 1172 (2009).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9788603

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788603. Public record. Not legal advice.