People v. Dillon

BIRD, C. J., Concurring.

I join in Justice Mosk’s opinion for the court. However, I write separately to emphasize that today’s decision still leaves unresolved some important challenges to the felony-murder rule.

Although the first degree felony-murder rule in this state appears to be a “creature of statute” (ante, at p. 463), this cannot be said for second degree felony murder. As Justice Mosk’s opinion observes, “the second degree felony-murder rule remains, as it has been since 1872, a judge-made doctrine without any express basis in the Penal Code . . . (Ante, at p. 472, fn. 19.)

This court has repeatedly criticized the felony-murder rule as a “highly artificial” and “barbaric” concept which “not only ‘erodes the relation between criminal liability and moral culpability’ but also is usually unnecessary for conviction . . . .” (See People v. Phillips (1966) 64 Cal.2d 574, 582, 583, fn. 6 [ 51 Cal.Rptr. 225 , 414 P.2d 353 ]; People v. Satchell (1971) 6 Cal.3d 28, 33 [ 98 Cal.Rptr. 33 , 489 P.2d 1361 , 50 A.L.R.3d 383 ].) This court is precluded by statute from abrogating the “unwise” and “outdated” first degree felony-murder rule (ante, at p. 463), but there is nothing which prevents this court from reassessing the second degree felony-murder doctrine. In view of the criticisms that this court and others have leveled against the rule over the past decade, the time seems to be at hand for doing away with that portion of the “barbaric” anachronism which we are responsible for. creating.

Moreover, as to the first degree felony-murder rule, there are still a number of open questions that have not been decided by this court. As the majority opinion notes, the rule encompasses a wide range of individual culpability. (Ante, at p. 477.) With regard to those felons who come within its ambit—i.e., those who kill deliberately and with premeditation and malice in the course of the enumerated felonies—the first degree felony-murder rule is superfluous. These individuals would be convicted of first degree murder by the traditional malice-plus-premeditation route, regardless of the existence or nonexistence of the felony-murder rule.

The elimination of the element of malice for felony murder is also unnecessary to obtain the conviction of those felons who, in the course of the *495 enumerated felonies, (1) kill intentionally but without premeditation or (2) cause a death through “an intentional act involving a high degree of probability that it will result in death, which act is done for a base, anti-social purpose and with a wanton disregard for human life.” Such persons act with malice. (Pen. Code, § 188; CALJIC No. 8.11 (1982 rev.).)

Thus, the only actual consequence of this first degree felony-murder rule is to mete out to certain persons who cause a death unintentionally or accidentally the punishment which society prescribes for premeditated murder. Serious questions remain as to whether the state and federal Constitutions permit the government to exact such extreme punishment in the absence of proof that an accused deliberated or harbored malice.

The Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364 [ 25 L.Ed.2d 368, 375 , 90 S.Ct. 1068 ].) Today’s majority opinion correctly holds that the “substantive statutory definition” of the crime of first degree felony murder in this state does not include malice as an element. (Ante, at p. 475.) However, this conclusion does not necessarily mean that the Constitution permits a first degree murder conviction to be based on a killing where an accused harbored no malice.

Winship requires proof beyond a reasonable doubt of every element of murder, but the language of the Winship decision has broader implications. According to Winship, due process requires proof beyond a reasonable doubt of “every fact necessary to constitute the crime.” ( 397 U.S. at p. 364 [ 25 L.Ed.2d at p. 375 ], italics added.) The United States Supreme Court did not tell us in Winship how to determine which “facts” are so “necessary” that the prosecution must prove them beyond a reasonable doubt. However, the high court has recognized that state legislatures will not be permitted to evade Winship by merely eliminating a “fact necessary to constitute the crime” from their statutory definition of the offense. (See Mullaney v. Wilbur (1975) 421 U.S. 684, 698 [ 44 L.Ed.2d 508, 519 , 95 S.Ct. 1881 ]; see also Patterson v. New York (1977) 432 U.S. 197, 211, fn. 12 [ 53 L.Ed.2d 281, 292 , 97 S.Ct. 2319 ].) As that court has taken pains to point out, “there are obviously constitutional limits beyond which the States may not go in this regard.” (Patterson, supra, 432 U.S. at p. 210 [ 53 L.Ed.2d at p. 292 ].) The exact location of these “limits,” however, has remained largely undefined in subsequent cases. (But see post, fn. 3.)

While the Supreme Court has managed to avoid this issue thus far, commentators have found it a fertile ground for theoretical discussion. Some have argued merely that those facts specified by the Legislature as necessary *496 to justify a particular criminal sanction must be proved beyond a reasonable doubt. (See, e.g., Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases (1977) 86 Yale L.J. 1299 .) Others have criticized this approach as overly formalistic 1 and have suggested that Win-ship’s reasonable doubt standard must be tied to a recognition of certain constitutional limitations on the Legislature’s power to define substantive crimes. (See, e.g., Jeffries & Stephan, op. cit. supra, 88 Yale L.J. at pp. 1365-1366; Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices (1980) 94 Harv.L.Rev. 321, 342-343 (hereafter, Allen).) These authors contend that the state should be required to prove beyond a reasonable doubt every fact which is constitutionally necessary to establish the guilt of the accused. In conjunction with this argument, there is an asserted need for a constitutional doctrine applicable to the substantive criminal law which defines minimum requirements for the imposition of the criminal sanction. It is suggested that the constitutional basis for such a doctrine may be found within notions of substantive due process, equal protection, cruel and/or unusual punishment, or some combination of all three. (See Note, The Constitutionality of Affirmative Defenses After Patterson v. New York (1978) 78 Colum.L.Rev. 655, 669-672; Allen, op. cit. supra, 94 Harv.L.Rev. at p. 343.)

What the exact contours of this doctrine are is another matter. The two most frequently mentioned constitutional limitations on substantive criminal law are a constitutional doctrine of mens rea (see Jeffries & Stephan, op. cit. supra, 88 Yale L.J. at pp. 1371-1376; Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107 , 148-149; Hippard, The Unconstitutionality of Criminal Liability Without Fault: An Argument for a Constitutional Doctrine of Mens Rea (1973) 10 Houston L.Rev. 1039) and the Eighth Amendment’s requirement of proportionality in criminal punish *497 ment. 2 (See Jeffries & Stephan, op. cit. supra, 88 Yale L.J. at pp. 1376-1379; see generally Wheeler, Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment (1972) 24 Stan. L.Rev. 838; Note, Disproportionality in Sentences of Imprisonment (1979) 79 Colum. L.Rev. 1119; see also Solem v. Helm (1983) — U.S. — [ 77 L.Ed.2d 637 , 103 S.Ct. 3001 ]; United States v. Weems (1910) 217 U.S. 349 [ 54 L.Ed. 793 , 30 S.Ct. 544 ]; In re Lynch (1972) 8 Cal.3d 410 [ 105 Cal.Rptr. 217 , 503 P.2d 921 ]; but see Rummel v. Estelle (1980) 445 U.S. 263 [ 63 L.Ed.2d 382 , 100 S.Ct. 1133 ].)

If either source for such a theory is adopted, 3 the doctrine of felony murder as a rule of substantive criminal law is highly vulnerable. (See Jeffries & Stephan, op. cit. supra, 88 Yale L.J. at pp. 1383-1387; Comment, Constitutional Limits Upon the Use of Statutory Criminal Presumptions and the Felony-Murder Rule (1975) 46 Miss.L.J. 1021, 1037-1040.) Since the rule punishes as murder any killing in the course of a felony without a showing of a culpable mental state with respect to that result, its continued application would impermissibly conflict with a constitutional requirement of mens rea. 4

*498 Moreover, proportionality may be violated when one considers that, at least in the absence of a showing of mens rea, defendants are in reality punished for the commission of the underlying felony. Two similarly situated felons may receive grossly disproportionate punishments based on the fortuity that a totally unintended and nonnegligent death occurred in one case but not the other. 5 (See also Lockett v. Ohio (1978) 438 U.S. 586, 620 [ 57 L.Ed.2d 973, 999 , 98 S.Ct. 2954 ] (conc. opn. of Marshall, J.).)

*499 It is certainly possible that the cruel or unusual punishment analysis of today’s majority opinion will develop along the lines suggested by these authorities. Time will tell. I write separately merely to point out that there are unresolved constitutional issues which this court may have to pass upon sooner or later.

As Jeffries and Stephan observe, “[t]he trouble lies in trying to define justice in exclusively procedural terms. Winship’s insistence on the reasonable-doubt standard is thought to express a preference for letting the guilty go free rather than risking conviction of the innocent. This value choice, however, cannot be implemented by a purely procedural concern with burden of proof. Guilt and innocence are substantive concepts. Their content depends on the choice of facts determinative of liability. If this choice is remitted to unconstrained legislative discretion, no rule of constitutional procedure can restrain the potential for injustice. A normative principle for protecting the ‘innocent’ must take into account not only the certainty with which facts are established but also the selection of facts to be proved. A constitutional policy to minimize the risk of convicting the ‘innocent’ must be grounded in a constitutional conception of what may constitute ‘guilt. ’ Otherwise ‘guilt’ would have to be proved with certainty, but the legislature could define ‘guilt’ as it pleased, and the grand ideal of individual liberty would be reduced to an empty promise.” (Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law (1979) 88 Yale L.J. 1325 , 1347 [hereafter, Jeffries & Stephan].)

Jeffries and Stephan also suggest a constitutional requirement of an actus reus. (88 Yale L.J. at pp. 1370-1371.) As Professor Allen notes, however, the actus reus requirement may be viewed in large part as an aid in establishing a culpable mental state to a sufficient degree of certainty. (See 94 Harv.L.Rev. at pp. 343-344, fn. 83.)

The Supreme Court’s recent decision in Sandstrom v. Montana (1979) 442 U.S. 510 [ 61 L.Ed.2d 39 , 99 S.Ct. 2450 ] suggests that the court may well be moving in that direction. Sandstrom applied strict due process limits to the state’s power to invoke conclusive presumptions, which were long thought to constitute rules of substantive criminal law. (See 9 Wigmore, Evidence (Chadbourne rev. ed. 1981) § 2492, p. 308.) The Sandstrom court relied heavily on Morissette v. United States (1952) 342 U.S. 246 [ 96 L.Ed. 288 , 72 S.Ct. 240 ], which many commentators see as a foundation for a constitutional mens rea requirement:

“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiár exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.” (Id., at pp. 250-251 [96 L.Ed. at pp. 293-294].)

In United States v. United States Gypsum Co. (1978) 438 U.S. 422, 436 [ 57 L.Ed.2d 854, 868 , 98 S.Ct. 2864 ], the court again relied on Morissette in holding that a showing of intent was required to sustain criminal liability under the antitrust laws. Although the court purported to interpret the statute so as to require a mens rea element, despite a substantial body of contrary precedent, it referred to and clearly relied on the constitutionally disfavored status of strict liability crimes. (Id., at pp. 437-438 [57 L.Ed.2d at pp. 869-870].)

It is true that in order for a defendant to be convicted of felony murder, the state must first establish his mental culpability with respect to the underlying felony. He is not morally blameless. However, as the United States Supreme Court noted in Jackson v. Virginia (1979) 443 U.S. 307, 323-324 [ 61 L.Ed.2d 560, 576-577 , 99 S.Ct. 2781 ], “[t]he constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. E.g., Mullaney v. Wilbur, 421 U.S. at 697-698 (requirement of proof *498 beyond a reasonable doubt is not ‘limit[ed] to those facts which, if not proved, would wholly exonerate’ the accused). Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar.”

Once the prosecution proves defendant’s culpable mental state with respect to the underlying felony, that culpability level is punishable by the sanction attached to the felony itself. The felony-murder rule, which mandates the imposition of severe additional punishment without any showing of additional mental culpability, is properly characterized as a strict liability criminal law concept. It is a concept which is blatantly unconstitutional if the Constitution prohibits the imposition of criminal punishment without a showing of a culpable mental state with respect to the result achieved. As Justice Mosk noted in dissent in Taylor v. Superior Court (1970) 3 Cal.3d 578, 593 [ 91 Cal.Rptr. 275 , 477 P.2d 131 ]: “Fundamental principles of criminal responsibility dictate that the defendant be subject to a greater penalty only when he has demonstrated a greater degree of culpability. To ignore that rule is at best to frustrate the deterrent purpose of punishment, and at worst to risk constitutional invalidation on the ground of invidious discrimination.”

This raises the spectre of the multitude of equal protection challenges which could be leveled against applications of the felony-murder rule. (See Comment, The Constitutionality of Imposing the Death Penalty for Felony Murder (1978) 15 Houston L.Rev. 356, 382.) A prime example appears by way of a recent Court of Appeal case. In People v. Fuller (1978) 86 Cal.App.3d 618 [ 150 Cal.Rptr. 515 ], defendants were charged with first degree felony murder after they were involved in a fatal traffic accident during an escape from the burglary of an unoccupied vehicle on an auto dealer’s lot. The court grudgingly reversed a trial court order dismissing the murder count. Relying on our holding in People v. Salas (1972) 7 Cal.3d 812, 822 [ 103 Cal.Rptr. 431 , 500 P.2d 7 , 58 A.L.R.3d 832 ], the Court of Appeal reasoned that since the burglars had not reached a “place of temporary safety,” the burglary was ongoing when the fatality occurred, thus allowing application of the felony-murder rule. ( 86 Cal.App.3d at p. 623 .)

The problem with such an application is that the escape, during which the death occurred, had no logical connection to the nature of the underlying felony. The felons could have been escaping from the scene of any crime with identical results. Although the Court of Appeal felt compelled by past cases to hold otherwise, it suggested that application of the doctrine should be limited to inherently dangerous burglaries. While this represents a more enlightened view, it misconceives the crucial point. The nature of the underlying crime is totally irrelevant. It is the felon’s dangerous conduct during the escape which must be deterred. In Fuller , that conduct (reckless driving) already subjected the defendants to charges of vehicular manslaughter and possibly second degree murder on a reckless murder theory. ( 86 Cal.App.3d at p. 629 .)

It is utterly irrational to subject some defendants to a first degree murder charge and a possible death sentence while others are charged only with vehicular manslaughter (or indeed no crime at all if their conduct was not grossly negligent) based solely on the nature of the crime from which they are escaping. Moreover, in People v. Olivas (1976) 17 Cal.3d 236, 251 [ 131 Cal.Rptr. 55 , 551 P.2d 375 ], we recognized that distinctions in criminal punishments affect the citizen’s fundamental interest in personal liberty and are thus subject to strict judicial scrutiny. The state can surely claim no compelling interest in imposing grossly disproportionate punishment on escaping burglars as opposed to escaping kidnapers or escaping thieves for unintended deaths which occur during such escapes.