concluding that felony of willful discharge of a firearm at inhabited house could serve as predicate felony for felony murder when the shooting killed an occupant
How later courts described this case
- concluding that felony of willful discharge of a firearm at inhabited house could serve as predicate felony for felony murder when the shooting killed an occupant
- applying the merger doctrine where the second degree felony murder statute authorized conviction for a killing committed during any felony inherently dangerous to human life
- "Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder."
- cone. & dis. opn. of Mosk, J.
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)
9 Cal.4th 300, 307 , overruled on another ground by People v. Chun (2009) 45 Cal.4th 1172
Overruled implicitly by People v. Randle, 28 Cal. Rptr. 3d 725 (2005)
Our analyses in Robertson and Randle implicitly overruled the Hansen test.
The opinion
WERDEGAR, J., Concurring.
I concur in the judgment and in the reasoning of the majority on the question whether the offense of discharging a firearm at an inhabited dwelling in violation of Penal Code section 246 is an inherently dangerous felony for purposes of the second degree felony-murder rule. I write separately to express my understanding of the “merger” doctrine, as articulated in People v. Ireland (1969) 70 Cal.2d 522 [ 75 *318 Cal.Rptr. 188 , 450 P.2d 580 , 40 A.L.R.3d 1323 ] (Ireland) and succeeding decisions, and as applied here.
I join the majority in rejecting the premise Ireland’s “integral part of the homicide” language is decisive of the merger issue in this case. (Maj. opn., ante, at p. 314.) In my view, however, People v. Mattison (1971) 4 Cal.3d 177 [ 93 Cal.Rptr. 185 , 481 P.2d 193 ] (Mattison), adopting the reasoning of the Court of Appeal in People v. Taylor (1970) 11 Cal.App.3d 57 [ 89 Cal.Rptr. 697 ] (Taylor), sets forth the operative test. Those cases require us to determine whether the underlying felony was committed with a “collateral and independent felonious design.” (Mattison, supra, 4 Cal.3d at p. 185 ; Taylor, supra, 11 Cal.App.3d at p. 61 .) Unlike the majority, I see no reason not to follow those decisions. I do not share the majority’s concern that application of the Mattison and Taylor rule leads to the anomalous result of punishing one who does not intend to injure more harshly than one who does. One who commits a felony inherently dangerous to human life with the intent to inflict injury is, in all probability, guilty of second degree murder under the implied malice theory. It follows there likely will be no disparity in the respective criminal liability of the two offenders; thus, the anomaly the majority fears is more apparent than real.
The evidence in this case supports the conclusion defendant entertained a collateral and independent felonious design under Mattison and Taylor , namely to intimidate Behaves by firing shots into his house. Accordingly, I join in the disposition this court’s judgment will effect.