Felony-Murder Rule
Category > Felony-Murder Rule
Updated 2/3/2024Defendant could not be convicted of felony murder where his wife jumped from the moving car on her own.Defendant was convicted on a legally inadequate theory of felony murder under the current rule, as amended by SB 1437, he could be liable for felony murder only if he was proven to be the “actual killer.” Because his wife jumped from the moving vehicle of her own volition, he was not the actual killer and therefore his conviction for first degree felony murder with a special circumstance rests on a legally invalid theory.id: 27541
Updated 2/3/2024Pre-Banks/Clark findings that defendant was a major participant acting with reckless disregard for life did not preclude SB 1437 relief.Defendant was convicted of felony-murder in 2014, and the jury found true felony-murder special circumstance allegations that he was a major participant who acted with reckless indifference to life. These findings do not preclude relief under SB 1437 because they were made before the decisions in People v. Banks (2015) 62 Cal. 4th 788 and People v. Clark (2016) 63 Cal. 4th 522. id: 27542
Updated 2/1/2024Retroactive application of SB 1437 required reversal where invalid instructions on felony murder were not harmless given defendant’s lack of knowledge that the others had lethal weapons.The trial court instructed on three potential theories of murder, including the felony murder theory that was later invalidated. Such error is harmless where it would be impossible, based on the evidence, for a jury to make the findings reflected in the verdict without also making the findings that would support a valid theory of liability. The error was not harmless here where defendant knew the others might have had weapons (like screwdrivers) but the evidence did not show he knew before the attack that anyone actually had a lethal weapon like the one used to kill the victim. There was no evidence that defendant possessed a weapon, supplied others with a weapon or expressed an intent to use lethal force.id: 27913
Updated 2/1/2024“Actual killer” for purposes of the revised felony murder rule means the person who killed the victim, not a person who caused the victim's death.The term “actual killer” as used in the revised felony-murder rule of Penal Code section 189(e)(1) refers to someone who personally killed the victim and is not necessarily the same as a person who “caused” the victim's death. Under that meaning it was possible for the jury to have found defendant guilty of felony murder, and found the felony-murder special circumstance to be true, without finding defendant was the actual killer. Defendant therefore met his burden of making a prima facie case for relief under Penal Code section 1170.95 and the case was remanded for an evidentiary hearing.id: 27983
Defendant’s actions after a murder do not establish that as an aider and abettor he was a major participant who acted with reckless indifference to life.Defendant was convicted of first degree felony murder in 1994. The jury found the killing occurred in the commission of an attempted robbery that defendant aided and abetted as a “major participant” and that he acted with reckless indifference to human life, for purposes of the LWOP sentence. In People v. Banks (2015) 61 Cal.4th 788, the court clarified what it means to be an aider and abettor who was a major participant acting with reckless indifference. Evidence of a defendant’s actions after a murder showing an indifference to the loss of life, standing alone, does not establish that defendant created a grave risk of death. Because there was no other evidence in support of the finding, the special circumstance was vacated. id: 26157
The true finding on the special circumstance allegation did not render defendant automatically ineligible for relief under SB 1437.In 2001, defendant was convicted of first degree murder along with a robbery murder special circumstance finding. In 2019, he petitioned for resentencing pursuant to Penal Code section 1170.95, and newly enacted SB 1437. The trial court erred by summarily denying the petition after ruling the special circumstance finding rendered defendant ineligible for relief. Under People v. Banks (205) 61 Cal.App.4th 788, such a finding is not alone sufficient to preclude relief. However, a court may summarily deny a petition based on the record of conviction. The matter was remanded for a determination of whether defendant was potentially eligible for resentencing under section 1170.95.id: 26717
Qualified inmates must receive parole consideration under Prop 57, and CDCR regulations excluding certain inmates based on in-prison conduct were invalid. The CDCR’s creation of a screening and referral process that excludes from parole consideration more than a third of otherwise eligible inmates based on their in-prison conduct is at odds with the clear language of Prop 57. Despite the policy considerations advanced by the CDCR, the law mandates that these prisoners receive parole consideration, if they have been convicted of a nonviolent felony and have served the full term of their primary offense.id: 26168
All assaultive-type crimes, including shooting at an occupied vehicle merge with the charged homicide and cannot be the basis for a second degree felony murder.The trial court erred by instructing the jury on second degree felony murder with shooting at an occupied vehicle as the underlying felony. The court first found the second degree felony murder rule is still valid. The court then modified the “merger doctrine” it adopted in People v. Ireland (1969) 70 Cal.2d 522, and found that all assaultive-type crimes, such as the present violation of Penal Code section 246, merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction. However, the error was harmless since the jury was also instructed on malice murder and the jurors necessarily found that theory true.id: 20897
The felony-murder conviction was reversed due to the lack of a correct instruction concerning the requirement that defendant must have aided and abetted the robbery at or before the time of the act causing death. The evidence showed defendant helped plan the robbery and acted as the getaway driver for the actual robber. However, the defendant testified he had no idea that the robber was going to commit any crime and he aided the robber when he saw him running from the store. The instructions given were prejudicially errorneous because they allowed defendant to be found guilty of felony murder even if he did not aid and abet the robbery until after the commission of the act that caused the victim’s death. The instructional error was not forfeited due to the lack of an objection.id: 24153
The trial court erred by failing to instruct sua sponte that felony murder liability doesn’t attach to a defendant who aided and abetted the perpetrator after the killing.The trial court had a sua sponte duty to instruct that felony murder liability doesn’t attach to a defendant who aids and abets the perpetrator for the crime only after the killing. The instructional error was prejudicial under the Chapman standard where the jury could have found defendant began aiding and abetting in the burglary and kidnap after the victim was killed.id: 24095
The trial court erred in applying the felony-murder rule to conspiracy to commit assault with a deadly weapon.Conspiracy felony-murder applies only to conspiracies to commit the offenses listed in Penal Code section 189. Assault with a deadly weapon is not one of the listed offenses. Moreover, based upon the merger doctrine stated in People v. Ireland (1969) 70 Cal.2d 522, felony-murder may not be based upon an underlying felony assault conspiracy. The erroneous instruction to the contrary was prejudicial where the prosecutor urged the jury to find first degree murder on that basis.id: 15303
The trial court prejudicially erred by failing to instruct on the “escape rule” at defendant’s felony murder trial.Defendant was convicted of first degree murder under a felony murder theory that the victim was killed during the commission of a burglary. The trial court erred by refusing to instruct that for purposes of felony murder, the felony continues only until the perpetrator has reached a place of temporary safety. The error was prejudicial as it was reasonably probable that a properly instructed jury would have found the defendant had reached a place of temporary safety before the fatal act occurred and was not guilty of felony murder.id: 23106
Chun case holding discharging a firearm at a vehicle cannot be used to support felony-murder should be applied retroactively, and the petition filed 10 months after the decision was not untimely. In 1995, defendant was convicted of second degree murder after he shot at an occupied vehicle, killing an occupant. In 2009, the California Supreme Court decided People v. Chun (2009) 45 Cal.4th 1172, announcing that the crime of shooting at an occupied vehicle now merges with the homicide such that it can no longer be used as a predicate for application of the felony-murder rule. Defendant’s habeas corpus petition filed 10 months after Chun was decided was timely. Moreover, Chun should be applied retroactively. However, any error in instructing on the felony-murder rule was harmless where the record showed the jury rested its verdict on malice rather than felony murder.id: 22453
The trial court erroneously instructed on felony-murder with shooting at an occupied vehicle as the predicate felony.The trial court erred by instructing on felony murder with shooting at an occupied vehicle as the predicate felony because shooting at an occupied vehicle is assaultive in nature and merges with the charged homicide. The court should have instructed the jury it had to find a collateral and independent purpose before it could rely on the felony-murder doctrine. However, the instructional error was harmless where the jury found defendant acted with implied malice, the other murder theory the prosecutor argued.id: 21096
The trial court erred in applying the felony-murder rule to a conspiracy to commit assault with a deadly weapon.Conspiracy felony-murder applies only to conspiracies to commit the offenses listed in Penal Code section 189. Assault with a deadly weapon is not one of the listed offenses, and therefore does not support conspiracy felony murder. Moreover, under the merger doctrine stated in <i>People v. Ireland</i> (1969) 70 Cal.2d 522, 538, felony murder may not be based upon an underlying felony assault conspiracy.id: 15302
Defendant's second degree murder conviction was reversed since felony evading cannot serve as the predicate for felony murder and the instructions would not necessarily have allowing allowed a finding of implied malice.Defendant was convicted of second degree murder after a high speed chase resulted in the killing of another driver. The jury was instructed on two theories: implied malice and felony murder based on a violation of Vehicle Code section 2800.2 (evading an officer with willful or wanton disregard for safety.) In People v. Howard (2005) 34 Cal.4h 1129, the court recently found that section 2800.2 cannot serve as the predicate offense for a second degree felony-murder conviction. The conviction was reversed since, under the instructions given, a jury finding the mental state required for felony murder would not necessarily have found that required for implied malice murder.id: 18582
An aider and abettor cannot be found guilty under the felony-murder doctrine unless he had the intent to commit the independent felony before the victim was killed.The trial court erred in failing to instruct the jury that to find him liable for felony murder on an aiding and abetting theory it had to find he became an aider and abettor before the victim was fatally wounded. Evidence supported the giving of such an instruction as defendant told codefendant that another codefendant attacked the victim after she asked him to leave her apartment and that the victim was in the process of cooking food (kielbasa, which she did not eat) for defendant before she was killed. Moreover, the other instructions given did not require a finding on the timing of defendant's participation in the crime and failed to give the jury the opportunity to decide whether defendant had the requisite intent before or after the killing. The erroneous instructions were prejudicial and the judgment was reversed.id: 9604
Aiding and abetting a robber following a killing does not subject a person to felony murder charges.If one person, acting alone, kills in the perpetration of a robbery, and another person thereafter aids and abets the robber in the asportation and securing of the property taken, the second person is not guilty of first degree murder under Penal Code section 189. Although the second person is an accomplice to robbery, such participation in the robbery does not subject the accomplice to murder liability under section 189, because the killer and accomplice were not jointly engaged at the time of such killing in a robbery. The failure to instruct on this principle was not prejudicial where the omitted issue was resolved adversely to defendant under other, properly given instructions.id: 9599
Court erred in instructing the jury that it could convict appellant of second degree felony-murder if it found the killing occurred in the commission of assault with a firearm.The trial court erred in instructing the jury that it could convict appellant of second degree felony-murder if it found that the killing occurred during the commission of an assault with a firearm. The court correctly instructed the jury concerning other theories of second degree murder. The instructional error was harmless where the jury determined appellant harbored the specific intent to kill as he was convicted of the attempted murder counts. It is inconceivable the jury would find he intended to kill only the victims who survived, but not the one who died.id: 10310
As a matter of law, furnishing PCP is not an inherently dangerous felony for purposes of second degree felony murder.Furnishing PCP is not an inherently dangerous felony for purposes of second degree felony murder. The court of appeal decided this issue de novo as a matter of law because the trial court made no express findings of fact. The only implied finding the trial court may have made was that the expert's testimony that PCP was inherently dangerous was correct. However, since this finding was not factual it did not require deference on the part of the court of appeal.id: 10308
The trial court prejudicially erred by instructing that evading an officer causing death under section 2800.2 supported a second degree felony-murder conviction. In People v. Howard (2005) 34 Cal.4th 1129, the court found that Vehicle Code section 2800.2 (evading police with willful disregard for the safety of others) was not an inherently dangerous felony, and therefore could not support a conviction for second degree felony-murder. Defendants were convicted of second degree murder under this theory. Following a recall of the remittutur, the convictions were reversed due to the trial court's failure to instruct on the implied malice theory of murder and the incorrect instructions given on the legally incorrect theory of felony-murder. The court determined the error could not be harmless under the Chapman standard since it was clear that the erroneous instructions contributed to the
verdict.id: 19079
The trial court erred in instructing on second degree felony murder because the felony of negligently discharging a firearm merged with the resulting homicide.Defendant discharged the firearm once, intending to shoot the motor vehicle's occupants, rival gang members, and not intending to merely frighten them. However, the bullet struck and killed
an unintended victim, the driver of another car. Under the merger doctrine articulated in People v. Ireland (1969) 70 Cal.2d 522, the trial court erroneously instructed the jury that the defendant could be guilty of second degree felony murder based on the underlying or "predicate" felony of discharging a firearm at an occupied motor vehicle. The error required reversal where the prosecution did not show that no juror relied on the improper theory in finding defendant guilty of second degree murder.id: 19555
The court erred in instructing on the felony murder doctrine based on the underlying crime of shooting at an occupied vehicle.Second degree felony murder, the only express theory of second degree murder offered to the jury was based on the underlying felony of shooting into an occupied vehicle. The People v. Ireland merger doctrine prevents using an assaultive-type crime as the basis for felony murder unless the underlying crime is committed with an intent collateral to committing an injury that would cause death. Without the evidence of defendant's involuntary statements about the shooting, there was no evidence from which a collateral intent or purpose could be found. It was therefore error to instruct on second degree felony murder and the murder conviction was reversed.id: 19855
Grossly negligent discharge of a weapon merges with the resulting homicide and cannot be used as a predicate for felony murder.Grossly negligent discharge of a firearm under Penal Code section 246.3 is an offense that merges with a resulting homicide, and thus cannot serve as a predicate for felony murder. However, while it was error to instruct the jury that it could convict defendant of second degree murder based on the commission of this offense, the error was harmless where the jury must have concluded in convicting defendant of the assault that he intended to harm the victim. In so concluding, the jury must have rejected the defense that defendant only intended to frighten the victim when he fired the shots.id: 17434
Felony evading under section 2800.3 cannot support a felony murder charge since the offense in the abstract can be committed without a high probability of death.Defendant was convicted of second degree murder after his car crashed while attempting to elude pursuing police officers. He was charged under implied malice and felony-murder theories. Felony evading under Vehicle Code section 2800.3 was the felony used to support the felony-murder theory. However, section 2800.3 is not inherently dangerous to human life as required for application of the second degree felony murder-rule. This is so because in the abstract the offense can be committed in a way that does not pose a high probability of death. The conviction was reversed.id: 14864
Under misdemeanor-manslaughter rule, the predicate misdemeanor must be dangerous under the circumstances of its commission.Conviction of involuntary manslaughter based on "an unlawful act, not amounting to a felony" (Penal Code section 192, subd.(b)), i.e., a killing resulting from the commission of a misdemeanor offense committed with general criminal intent, requires a further showing that the predicate misdemeanor was dangerous under the circumstances of its commission.id: 15461
Extortion is not an inherently dangerous crime, as necessary to support a felony-murder theory.Defendant was convicted of second degree murder. However, the underlying crime relied on by the prosecution - extortion - does not support the application of the felony-murder rule and thus the trial court erred in instructing the jury regarding second degree felony-murder.id: 15452
A violation of Vehicle Code section 2800.3, evasion of a peace officer causing death or serious bodily injury, cannot support a charge of felony-murder.Defendant was convicted of second degree murder, evading an officer causing death, and other offenses. The prosecution presented two theories of murder, second degree felony murder, and implied malice murder. The jury was not advised that the mental state for a felony murder conviction based upon the commission of section 2800.3 requires a finding the defendant had the specific intent to cause death or serious injury. The jury was told by the prosecutor all that was necessary was the intent to flee. The felony-murder instructions allowed a conviction without the mental state required for murder. The error was prejudicial since a rational jury could conclude that defendant drove with the intent to evade police but did not intend to kill or cause serious bodily injury.id: 15449
Court erroneously removed factual issue from jury's consideration by instructing on the existence of a continuous transaction for purposes of felony-murder.In response to a question from deliberating jurors, the court stated that if the jury found defendant entered the house with the intent to steal, the homicide and burglary were part of one continuous transaction. However, it is for the jury to decide whether the existence of a single transaction, and hence a murder in the perpetration of a felony, was proven beyond a reasonable doubt. The court's instruction effectively removed that factual issue from the jury's consideration. However, the error was harmless where it was clear the erroneous answer did not contribute to the conviction.id: 15432
Evading police under section 2800.2 is not inherently dangerous felony for purposes of the second degree felony-murder rule.The crime of driving with willful or wanton disregard for the safety of persons or property while fleeing from a pursuing officer, in violation of Vehicle Code section 2800.2, is not an inherently dangerous felony for purposes of the second degree felony-murder rule.id: 18322
The jury instructions regarding second degree felony murder were erroneously overbroad in not precluding the jury's use of the wrong underlying felony.The felony murder instructions were erroneous for not applying the doctrine of merger of the underlying felony and the homicide <i>People v. Ireland</i> (1969) 70 Cal.2nd 522. There was evidence of three assaults with a deadly weapon, namely defendant on Murphy, Johnson on Murphy and Johnson on Brown. There was <i>Ireland</i> error in that the jury was not instructed it could not rely on the assault on Brown to apply the felony murder rule. The error was prejudicial where it could not be determined on appeal whether the jury relied on a proper or improper felony murder theory to convict him.id: 10325
Attempted murder instruction on felony murder theory was erroneous where there was no killing.Because there was no killing, the instruction allowing the jury to convict defendant of attempted murder on a felony murder theory was error. The result was not changed by the fact that defendant was tried and convicted as an aider and abettor since the jury was never instructed that the perpetrator must have the specific intent to kill.id: 10309
Use of the second degree felony-murder rule with child endangerment as the underlying felony is erroneous because the offense is not inherently dangerous to lifePenal Code section 273a, subd.(1), felony child endangerment, does not define an offense inherently dangerous to life and for such reason is not a qualifying felony for application of the felony-murder rule.id: 10304
Trial court must determine whether the act of furnishing cocaine to another is inherently dangerous to human life.While Health and Safety Code section 11352 includes drug offenses other than the crime of furnishing cocaine, which formed the basis for the prosecution's theory of second degree murder, the inquiry must focus on the felony of furnishing cocaine, and not on section 11352 as a whole. Consistent with the established definition of the term inherently dangerous to life in the context of implied malice as an element of second degree murder<197>a felony is inherently dangerous to life when there is a high probability that its commission will result in death. The case was remanded to the trial court to determine whether, in furnishing cocaine, defendant committed an inherently dangerous felony.id: 10327
A burglary based on intent to assault cannot support a felony-murder instruction.The court erred in instructing the jury that it might convict of first degree murder if it found the killing occurred during a burglary in which defendant's intent was to commit an assault. The error was harmless where the jury was presented with one legally objectionable theory and several permissible theories and pursuant to other, properly given instructions, the jury found beyond a reasonable doubt that defendant committed a robbery and that he was guilty of the robbery-felony-murder special circumstance.id: 10305
Updated 6/1/2024Evidence supported the felony murder conviction for the defendants who were major participants in the kidnapping and acted with reckless indifference in making armed threats to the victims.Defendants were guilty of felony murder as major participants due to their planning the kidnapping of the victim that led to his death. The evidence also showed they acted with reckless indifference to human life in carrying out the kidnappings where they were armed, used their guns to intimidate and threaten the victims and made no attempt to restrain their compatriots or aid the victims in any way.id: 28280
Updated 6/1/2024Under the new felony murder law, a nonkiller who acts with the intent to kill need not be shown to have assisted in the killing itself.Defendant was convicted of felony murder. He argued that to commit a nonkiller of first degree murder under the amended felony-murder statute when the nonkiller acts with an intent to kill, the prosecution must prove the nonkiller assisted in the killing. However, a person who, with an intent to kill, directly commits or aids and abets an enumerated felony in which a death occurs commits the actus reus necessary for felony murder under the amended felony murder statute by acting in furtherance of the common design of the felony.id: 28277
Updated 2/7/2024Merger doctrine does not prohibit burglary based felony murder or the special circumstance where the entry was made with the intent to commit sexual assault.Defendant argued that neither a burglary based felony murder nor a burglary special circumstance can properly be based on an entry with the intent to commit a sexual assault. However, a sexual assault has an independent purpose and doesn’t merge with the murder. id: 27223
Updated 2/7/2024Amendment to a felony-murder rule does not require the prosecution to prove malice in the murder of a police officer.The trial court properly ruled that Penal Code section 189(f) does not require the prosecution to prove the defendant acted with malice in a case of the murder of a peace officer under the felony-murder doctrine.id: 27207
Updated 2/4/2024Defendants who were armed during the robbery acted with reckless disregard to human life for purposes of felony murder.Defendants were convicted of first degree felony murder. The evidence was sufficient to establish that they acted with reckless indifference to human life where they used a firearm, made no effort to assist the victim after the shooting and made no effort to minimize the risk of the robbery.id: 27369
Updated 2/4/2024The trial court did not err in refusing to instruct on robbery as a lesser included offense of felony murder where the information did not specify the predicate offense.Defendants were convicted of felony murder in a case where the victim was shot and killed during a robbery. However, the information did not list the predicate offense for the felony-murder allegation. Under this circumstance, the trial court did not err in refusing to instruct on robbery as a lesser included offense. id: 27370
Updated 2/4/2024Predicate offenses under the gang enhancement statute cannot be proven solely by the testimony of a gang expert.The Penal Code section 186.22 (b) gang enhancement requires proof that the gang’s members have been engaged in a pattern of criminal activity. These crimes, known as “predicate offenses” must be proven by independently admissible evidence, and may not be established solely by the testimony of an expert who has no personal knowledge of facts otherwise necessary to satisfy the prosecution’s burden.id: 27371
Updated 2/4/2024Evidence supported the court’s finding in section 1170.95 proceedings that defendant’s cohorts were shooting at a police officer during a robbery.There is an exception to the new felony-murder rule where the murder victim is a working police officer. Evidence supported the finding that defendant knew or should have known the victim was a police officer where they had taken over a restaurant during an armed robbery late at night, separated one officer from her radio, and knew dispatch had alerted other officers of the incident.id: 27565
Updated 2/1/2024Getaway driver who yelled “shoot him, shoot him” was a major participant in the robbery and not entitled to relief under SB 1437.Defendant was a getaway driver for a robbery and was convicted of first degree murder on a felony murder theory. Evidence that he yelled “shoot him, shoot him” to the actual shooter being chased by a citizen witness supported the trial court’s finding that he was a major participant in the underlying robbery.id: 28016
The jury should not be instructed on the defense burden to prove accomplice status where defendant is charged with an in-concert crime. The defendant has the burden of proving that a witness is an accomplice for purposes of Penal Code section 1111. But some crimes, like sexual penetration in-concert and rape in-concert require proof that defendant acted with an accomplice, and the prosecution has the burden of proving that element. CALCRIM No. 334, which instructs jurors that defendant must prove a witness’s accomplice status, should be omitted when a defendant is changed with an in-concert crime. The failure to modify the instruction was not harmful where the jury was otherwise properly instructed on the prosecution’s burden of proving each element, and the comments on that point by both attorneys during closing argument.id: 26160
The Ireland merger doctrine does not apply to first degree felony murder. Defendant argued the “merger doctrine” described in People v. Ireland (1969) 70 Cal.2d 522, precludes a verdict of first degree murder in the course of mayhem or torture because the commission of those crimes was an integral part of his heat of passion killing. However, the Ireland merger doctrine does not apply to first degree felony murder. id: 25834
The court’s failure to instruct on murder with malice aforethought (instructing instead only on felony murder) was harmless where the jury also found the felony murder special circumstance to be true.Defendant was charged with murder with malice aforethought. The trial court instructed only on first degree felony murder without instructing on murder with malice aforethought or lesser included offenses (or defenses) to that offense. However, the failure to instruct the jury on murder with malice aforethought was harmless where the jury also found true the felony murder special circumstance allegation.id: 25690
Second degree felony murder conviction was not vague under Johnson based on this record where an accomplice was killed during the dangerous manufacture of methamphetamine. Defendant sought reversal of his second degree murder conviction arguing that the reasoning in Johnson v. United States (2015) 135 S. Ct. 2551, renders the California second degree felony murder rule unconstitutionally vague. However, under the facts in this case, there is no vagueness problem for second degree felony murder for the death of an accomplice arising out of the felonious manufacture of methamphetamine.id: 26169
Attempted carjacking was not necessarily included in the felony murder count.Defendant was convicted of murder committed during an attempted carjacking, and attempted carjacking. Contrary to his argument, the latter conviction need not be vacated as a lesser included offense of the felony murder conviction.id: 25565
There was a sufficient causal relationship between defendant’s sex crimes with the unconscious victim and his failure to seek medical help to support his first degree felony murder conviction. Defendant sexually assaulted the victim while she was in a diabetic coma, and within two hours she died of ketoacidosis. Experts agreed the sex crimes didn’t contribute to her death. However, defendant didn’t merely sexually assault the victim, he failed to seek medical assistance knowing she was in dire physical condition - a fact that would remain hidden as long as she was in his hotel room. There was a sufficient causal relationship between defendant’s fatal omission and the sex crimes to support his conviction for first degree felony murder and the true finding on the felony-murder special circumstance allegation.id: 25341
The felony murder rule does not require proof of a strict causal relationship between the felony and the killing if there is one actor and one continuous transaction.The trial court did not err by refusing to instruct on causation principles in his felony-murder case. Where, as here, the case involves a single perpetrator, application of the felony murder rules lies outside the context of causation principles such as proximate cause, natural and probable consequences, and foreseeability.id: 23005
The merger doctrine did not prevent a mayhem felony-murder conviction where there was evidence the victim could have survived the scalding.Defendant argued that a conviction for mayhem felony-murder would violate the merger doctrine described in People v. Ireland (1969) 70 Cal.2d 522. However, the medical testimony here was that the victim could have survived if given prompt medical care although the scalding would have scarred her for life. This mayhem need not have resulted in murder. Therefore, the merger doctrine did not apply.id: 22214
Defendant was properly convicted of felony murder where he burglarized a house and some of the loot fell out of the back of his truck 60 miles away because the burglary and homicide were part of a continuous transaction.Defendant burglarized a house under construction before workers arrived for the day. He loaded many boxed appliances and fixtures into the back of his pickup truck, but did not close the tailgate or tie the load down. After driving 60 miles on his way home, a stove fell out of the back of the truck, resulting in a traffic accident death. The jury could properly conclude that the homicide and burglary were part of a continuous transaction for purposes of the felony murder rule. Moreover, the trial court did not err in refusing to instruct that a burglary is complete when the burglar reaches a place of temporary safety. While the escape rule defines the scope of an underlying felony for certain ancillary purposes, it does not do so for felony murder purposes.id: 21984
Application of Marcy’s Law to extend time between parole hearings did not violate the ex post facto prohibition. The Board of Parole Hearings found defendant unsuitable for parole. The Board’s application of Marcy’s Law to schedule defendant’s next parole hearing three years from the date of the October 2009 hearing does not violate the prohibition against ex post facto laws. id: 22229
The felony-murder escape rule applies to flight during the commission of a burglary.Contrary to defendant’s claim, the felony-murder escape rule applies to flight during the commission of a burglary. Moreover, the evidence in the present case established that the homicide occurred as part of a continuos transaction from the commission of the burglary before defendant was able to obtain a position of temporary safety. It did not matter that no one was home when the burglary was committed. id: 21779
Burglary with intent to cause damage greater than $5,000 was a wobbler but that did not remove it from the felony murder status.Defendant challenged the felony-murder instruction by arguing that a violation of former Penal Code section 594(b)(a) (burglary with intent to cause damage in excess of $5,000) was not a felony, but a wobbler whose classification would depend on the judge’s sentence. However, that a judge might ultimately impose a misdemeanor sentence did not remove the offense from the class of crimes that may form the basis of a burglary conviction.id: 21154
The Ireland merger doctrine should not have been extended to apply to the felony-murder rule where the burglary charge is based upon an intent to assault the murder victim.Defendant, who was allegedly stalking a co-employee, opened fire at work killing several people and wounding others, including Black, the stalking victim. The prosecution alleged the felony-murder special circumstance based upon burglary on the theory that defendant entered the facility with the intent to assault Black. Defendant argued the felony-murder theory was flawed because the entry with the intent to assault Black merged with the six homicides committed inside. He claimed the Ireland merger rule should be extended to prohibit application of the felony-murder rule when the burglary charge is based upon an intent to assault someone other than the homicide victim. However, the merger rule never should have been extended to felony murder based upon a burglary committed with the intent to assault the murder victim. The court overruled People v. Wilson (1969) 1 Cal.3d 431, that extended the doctrine.id: 21095
Felony-murder rule does not apply to nonkillers where the killing is unrelated to the underlying felony other than occurring at the same time and place.The felony-murder rule does not apply to nonkillers where the act resulting in death is completely unrelated to the underlying felony other than occurring at the same time and place. Under California law, there must be a logical nexus, i.e., more than mere coincidence of time and place, between the felony and the act resulting in death before the felony-murder rule may be applied to a nonkiller. Evidence that the killing facilitated or aided the underlying felony is relevant but nonessential. Moreover, the requisite temporal relationship and the homicidal act exists even if the nonkiller is not physically present at the time of the homicide, so long as the felony that the nonkiller committed or attempted to commit and the homicidal act are part of one continuous transaction.id: 17945
Second degree felony murder exists where the underlying felony is inherently dangerous to human life.Defendant argued there is no such crime in California as second degree felony murder since it is not proscribed by statute and there is no common law crime in California. However, the statutes do prohibit as second degree murder an unlawful killing committed in the perpetration or attempted perpetration of a non-enumerated felony inherently dangerous to human life.id: 10323
Any error in failing to instruct that shooting at an occupied vehicle won't support second degree felony murder was harmless where the verdicts showed the jury found express malice.Defendant argued that his second degree murder conviction had to be reversed, because under the People v. Ireland merger doctrine, second degree felony murder cannot be based on the predicate felony of shooting at an occupied vehicle in violation of Penal Code section 246. The court found section 246 may be used to support second degree felony murder, but any error in failing to so instruct was harmless where the attempted murder verdict shows the jury found an intent to kill, and therefore express malice.id: 19994
Any error in failing to instruct on nonkiller liability under the felony murder following the jury's question was harmless given the strong evidence of defendant's direct involvement in the rape and kidnapping.The prosecution's theory was that defendant was the actual rapist and killer, not an aider and abettor. The defense argued
consensual sex before defendant left the victim with Martinez. At that point, the trial court had no sua sponte duty to give CALJIC 8.27 on nonkiller complicity under the felony-murder rule. The obligation may have arisen once the jurors expressed confusion concerning the liability of nonkiller aiders and abettors. However, any instructional error was harmless where the facts overwhelmingly showed defendant directly and actively participated in the rape and kidnapping.id: 19241
The court has no sua sponte duty to instruct on theft as a lesser included offense where felony-murder, but not robbery, is charged.Regardless of whether the prosecution is brought against a principal or an aider and abettor, theft is not a lesser included
offense of a charged crime in a felony-murder prosecution unless robbery is separately charged in the accusatory pleading.id: 19155
The trial court properly instructed that defendant could be found guilty of second degree felony murder if the killing was committed by the discharge of a firearm in a grossly negligent manner.The trial court properly instructed the jury that defendant could be convicted of second degree felony murder based upon the predicate offense of discharging a firearm in a grossly negligent manner. (Penal Code section 246.3.) Contrary to defendant's claim, the merger doctrine set forth in People v. Ireland (1969) 70 Cal.2d 522, did not bar instruction on second degree murder based upon a felony-murder theory.id: 18050
Forcible sodomy did not support a finding of first degree felony murder at the time of trial.The trial court erred in instructing the jury that forcible sodomy could support a finding of first degree felony murder since, at the time of the trial, it was not included in Penal Code section 189's list of enumerated felonies. However, the error was harmless where the verdicts showed the first degree murder conviction was grounded on other, valid legal theories of felony murder.id: 18060
For purposes of felony murder, in the commission of a robbery or burglary where the entry is made for theft, the only specific intent the prosecution must prove is the intent to steal the victim's property.Defendant argued the trial court erred by instructing the jury on the mental states required for felony murder as they related to a defense based on a mental disorder. He argued that specific intent to commit the underlying felony meant intent to commit the crime as a whole or a specific intent to commit each element of the underlying felony, and not merely the specific intent that is required to commit the underlying felony. However, for felony murder in the commission of a robbery or a burglary in which the entry is made for the purpose of theft, the only specific intent the prosecution must prove is the intent to permanently deprive the victim of his or her property.id: 17876
The trial court did not commit Apprendi error by refusing to allow the jury to consider whether operating a methamphetamine lab was an inherently dangerous felony for purposes of the felony-murder rule.Defendant was convicted of second degree murder and the manufacture of methamphetamine. He argued the determination of whether manufacturing methamphetamine was an inherently dangerous felony should have been made by the jury, not the court. However, nothing in Apprendi v. New Jersey (2000) 530 U.S. 466, changed the long-standing rule that it is a question of law whether a crime is an inherently dangerous felony for the purpose of the felony-murder rule.id: 17883
Accidental death of an accomplice triggers the felony-murder rule.Defendant argued the trial court erred in refusing to instruct the jury that the felony-murder rule did not apply to an accomplice who accidentally killed herself during the manufacture of methamphetamine. However, the accidental death of an accomplice triggers the felony-murder rule.id: 17884
All arsonists at the scene may be convicted under the felony-murder rule where one of the coconspirators caught fire and burned to death.Felony murder liability for any death in the course of an arson attaches to all accomplices in the felony at least where, as here, one or more of the surviving accomplices were present at the scene and active participants in the crime.id: 17635
Instructing on the illegal purpose element in the kidnap of an infant did not negate the earlier instruction regarding the requirement that felony murder during a kidnapping requires proof of a specific intent to kidnap.The trial court properly instructed the jury that to find defendant guilty of first degree felony murder during a kidnapping, the prosecutor was required to prove beyond a reasonable doubt that defendant had the specific intent to commit kidnapping. Defendant argued the jury may have disregarded the instruction because of the additional instruction involving the kidnapping of an infant. However, reviewing the entire charge, a reasonable juror would not have read the latter instruction as negating the earlier specific instruction.id: 17329
The "escape rule" may be applied to sex crimes for purposes of establishing felony-murder.Defendant argued the trial court prejudicially erred in essentially expanding the scope of felony-murder sex offenses to include a homicide that occurred after the sex offenses were complete but before the defendant reached a place of temporary safety. He argued the portion of the court's instruction telling the jury the underlying crimes of rape and sodomy continue for felony-murder purposes while the perpetrator attempts to escape or to avoid detection was wrong because the so-called "escape rule" only applies to theft offenses. However, the "escape rule" may be applied to sex crimes for purposes of the felony-murder rule.id: 17271
Information alleging rape, robbery, and murder, along with felony-murder special circumstances gave adequate notice that the prosecution was proceeding on a felony-murder theory.The information charged defendant with rape and robbery, as well as murder, and it alleged the felony-murder special circumstance based on rape and robbery. Defendant argued a lack of notice that the prosecutor was proceeding on a felony-murder theory. However, the pleading adequately notified the defendant of the possibility of murder on a felony-murder theory.id: 16553
Because malice is irrelevant in first and second degree felony-murder prosecutions a claim of imperfect self-defense, offered to negate malice, is likewise irrelevant.Defendants argued the trial court erred in precluding them from asserting a claim of imperfect self-defense to the prosecution's second degree felony-murder theory of liability. Defendants claimed they fired at the automobile because they believed its occupants were about to shot at the house and that this was a valid defense to second degree felony murder. However, the claim of imperfect self-defense is irrelevant to the charge of second-degree felony murder.id: 15450
Evidence supported the felony-murder conviction following the burglary where defendants were pursued and their car struck another car killing the driver.Defendants were burglarizing a car when they were spotted. They drove away to avoid capture but they were followed. Defendants turned off their car lights and sped away. However, in their attempt to lose their pursuer they struck a car, killing the driver. Defendants argued the evidence did not support the first degree felony-murder convictions because they had reached a place of temporary safety before causing the accident. However, due to the immediate pursuit, the defendants had not reached a place of temporary safety, and the evidence supported the conviction.id: 15451
Felony-murder applies to accomplices of specified crimes that result in accidental killings.Defendant argued the trial court prejudicially erred by instructing that defendant should be convicted of first degree murder if his accomplice in the robbery killed the victim by accident. He claimed the felony-murder rule should not serve as a basis to convict an accomplice where the killing of an innocent person occurred accidentally. However, the instruction given accurately described the current law governing the crime of felony murder.id: 15454
Felony-murder doctrine applies where defendants cause a death while driving away after committing a second degree burglary.Defendant argued the felony-murder rule should not be extended to include burglary which is not a crime involving danger to life. However, the felony-murder doctrine applies where defendants cause a death while driving away after committing a second degree burglary.id: 15455
Grossly negligent firearm discharge is inherently dangerous and supports second degree felony murder.Grossly negligent discharge of a firearm in violation of Penal Code section 246.3 is an offense "inherently dangerous to human life" which will support a conviction of second degree felony murder.id: 15456
Manufacturing methamphetamine is an inherently dangerous felony for purposes of the second degree felony-murder rule.Defendant argued manufacturing methamphetamine (Health and Safety Code section 11379.6) cannot be used to support a murder conviction under the second degree felony-murder rule, because it is not an inherently dangerous felony. However, the trial court properly ruled that manufacturing methamphetamine is inherently dangerous to human life for purposes of the second degree felony-murder rule.id: 15457
Shooting into an occupied vehicle is an inherently dangerous felony for purposes of the second degree felony murder rule and the crime does not "merge" with the resulting homicide.Contrary to defendant's claim, a violation of Penal Code section 246 that involves shooting into an occupied vehicle constitutes an inherently dangerous felony for purposes of the second degree felony murder rule. Moreover, a violation of section 246 does not "merge" with the resulting homicide and therefore does not preclude application of the felony-murder rule.id: 15458
Simple kidnapping may serve as the predicate for second degree felony murder.Simple kidnapping has been held to be a felony inherently dangerous to human life which may support a conviction of second degree murder. Therefore, the trial court did not err in instructing on second degree felony-murder predicated on the felony of simple kidnapping.id: 15459
Trial court had no sua sponte duty to instruct in a felony-murder prosecution on the simultaneity of killing and specific intent to commit the underlying felony.Defendant argued the trial court was under a sua sponte duty to instruct that in a capital prosecution based on the felony-murder doctrine, the prosecution is required to prove that the killing and defendant's intent to commit the underlying felony occurred concurrently. However, the other instructions informed the jury the specific intent to burglarize or rob must exist at the time of the killing.id: 15460
Second degree felony murder is not a lesser included offence of assault of a child resulting in death.Defendant was convicted of assaulting a child resulting in death under Penal Code section 273ab. He argued the court erred in failing to instruct on lesser included offenses. However, involuntary manslaughter is a lesser related, not a lesser included offense. Neither were instructions on second degree felony-murder required. Because the underlying felony conduct was not independent of an assault resulting in death, the killing was outside the felony-murder rule.id: 15441
Court need not instruct on lesser included offenses of uncharged offenses relevant only as predicate crime under the felony-murder doctrine.Defendant argued the instructions relating to felony-murder doctrine should have included theft as a lesser included offense of the robbery. However, although a trial court must on its own initiative instruct the jury on lesser included offenses of the charged offenses, this duty does not extend to uncharged offenses under the felony-murder doctrine.id: 14863
Felony-murder liability continues during the escape of a burglar from the scene of a burglary until the burglar reaches a place of temporary safety.A killing which occurs during the perpetrator's flight from a burglary occurs in the perpetration of the burglary and therefore is felony murder.id: 10316
Felony-murder theory was proper where the robbery and killing were part of one continuous transaction.The evidence showed that defendants intended to put their competitor, Frazier, out of business. As part of their plan they stole the assets of his business including the money and drugs. They also recruited Frazier's runners. The elimination of Frazier and the takeover of his business were one continuous transaction. In addition, defendants had not reached a place of temporary safety after the robbery until Frazier was killed. Therefore, the robbery was not completed until Frazier was killed. The court did not err in instructing the jury on the felony-murder theory of first degree murder.id: 10317
In a prosecution for homicide in the course of a robbery it is sufficient to prove the corpus delicti of the homicide and there is no need to prove the corpus delicti of the robbery.Defendant argued the prosecution failed to establish the corpus delicti of the attempted robbery. This failure, he argued, flawed the attempted robbery conviction, the felony-murder special circumstance finding and the felony-murder based murder conviction. However, defendant never made this objection in the trial court where proof of the corpus delicti may have been available but in the absence of a specific objection was omitted. Moreover, the corpus delicti of the murder and attempted robbery were established. In a prosecution for homicide in the course of robbery, it is enough for the prosecution to prove the corpus delicti of the homicide. Although he was acquitted of the robbery, evidence of the robbery and his participation in it was admissible to prove the corpus delicti of the attempted robbery. Further, defendant's testimony was inadmissible to prove corpus delicti.id: 10318
Kidnapping for robbery will support a second degree felony murder conviction.The offense of kidnapping for robbery cannot be committed unless the movement places the victim in a position which is dangerous to human life. Consequently, the commission of the crime creates a high probability that death will result. Kidnapping for robbery, therefore is an inherently dangerous felony which can support a conviction of second degree felony murder.id: 10319
Lesser murder and manslaughter instructions were not required in felony-murder case where there was no evidence that anything besides a kidnapping felony-murder occurred.Defendant was convicted of murder on a felony-murder theory. He argued the court erred in failing to instruct sua sponte on the lesser included offenses of murder and manslaughter. However, defendant's assertion that the jury may have found no kidnapping and a later assault was pure speculation. Therefore, since there was no evidence that anything besides a kidnapping felony-murder occurred, the court had no sua sponte duty to instruct on second degree murder and manslaughter.id: 10320
Nexus between sodomy and the killing two hours later was sufficient for felony murder where defendant's control over the victim was continuous.Defendant argued the evidence of felony murder was insufficient since there was no nexus between the sodomy and the victim's death. The only nexus required is that the felony and the killing be part of a continuous transaction. Even though the killing may have occurred two hours after the sodomy, defendant's control over the victim was continuous since during most of this time, the victim was either bound, locked in a trunk or both.id: 10321
Reckless or malicious possession of destructive device is an inherently dangerous felony for purposes of the second degree felony-murder rule.The jury found appellant guilty of reckless or malicious possession of a destructive device (Penal Code section 12303.2). Appellant argued this offense does not constitute an inherently dangerous felony for purposes of the second degree felony-murder rule. However, to recklessly or maliciously possess a bomb in a residential area, as appellant did, or in any place close to people, inherently involves a high probability of death.id: 10322
Simple kidnapping may serve as a basis for second degree felony murder.Simple kidnapping is an inherently dangerous felony which may support a conviction of second degree felony murder.id: 10324
There was no Ireland error where no assault was involved.Appellant was convicted on a felony-murder theory after officers died while dismantling the bomb found in his garage. He claimed <i>People v. Ireland</i> (1969) 70 Cal.2d 522, error because possession of the bomb was a necessary ingredient of the homicide it was integral to and included in fact within the offense and thus could not activate the felony-murder rule. However, <i>Ireland</i> has not been applied where there has been no assault and no assault was involved in the instant case.id: 10326
A robber fleeing from police may be prosecuted for felony murder when a high speed chase leads to an auto accident killing the driver of the other vehicle.Defendant was convicted of first degree murder with special circumstances<197>robbery murder. Defendant argued the robbery and homicide were not part of a continuing transaction. However, the fact that the victim was killed 30 minutes after the robbery did not preclude a finding that the killing occurred in the commission of the robbery. Moreover, the fact that the homicide occurred more than 22 miles from the robbery did not preclude a finding that the killing occurred in the commission of the robbery. Evidence supported the jury's finding that the killing was a continuing part of the robberies.id: 10306
Appellants' arguments for limiting application of the felony-murder rule did not apply to their role in the instant offenses.Appellants argued that the illogical and sometimes inequitable results of the felony-murder doctrine require a limitation of its application only to those homicides which are the natural, reasonable or probable consequences of the acts of an aider and abettor. The court found appellant's suggestion was contrary to the relevant opinions of the California Supreme Court. Moreover, the facts in the record did not indicate that the appellants, who were present at the time of the robberies and murders and actually attempted to execute the victims, could have been convicted of felony murder as a result of killings which were not the natural, reasonable or probable consequences of the acts they aided and abetted.id: 10307
Court was not required to instruct on misdemeanor-manslaughter where simple possession of the bomb could have been charged as a misdemeanor.Appellant was convicted of reckless or malicious possession of a destructive device under Penal Code section 12303.2. He argued the court should have instructed sua sponte on misdemeanor-manslaughter because simple possession of a destructive device (section 12303) could have been a misdemeanor. However, simple possession is an alternative felony (a wobbler). Since it is punishable by imprisonment in state prison it was a felony for all purposes until validly reduced to a misdemeanor. There was no basis for a misdemeanor-manslaughter instruction.id: 10311
Defendant had notice the prosecution would charge felony murder and it is not necessary to separately charge a defendant with either a felony murder theory or the underlying felony.Defendant argued the court erred when it permitted the prosecution to present to the jury theories of felony murder/kidnapping and felony murder/kidnapping for robbery. He claimed that because the kidnapping special circumstances were dismissed prior to trial and the only charged felony murder theory remaining was felony murder/robbery, he was deprived of his constitutional right to notice of the charge against him. He stated that even though he was charged with kidnapping and kidnapping for robbery, this provided no notice the prosecutor would rely on a theory of felony murder/kidnapping. However, it is not necessary to separately charge a defendant with either a felony murder theory or the underlying felony. Moreover, the amended information clearly put defendant on notice the prosecution would press for felony murder.id: 10312
Defendant's initiation of a gun battle with robbery victim was conduct provocative of a lethal response beyond that inherent in the underlying felony of robbery, and he was properly charged with the murder of the accomplices.During a robbery, the defendant initiated a gun battle with the store owner and then left. Defendant's accomplices then threatened the victim's children and the robbery victim shot and killed the accomplices. That defendant's accomplices also contributed to their deaths by threatening the store owner's children signified only that there was more than one proximate cause of the accomplices deaths and did not alter the determination that defendant's actions were a substantial factor in causing those deaths. The superior court erred in setting aside that portion of the information.id: 10313
Discharging a firearm at an inhabited dwelling is an inherently dangerous felony for purposes of the second degree felony-murder doctrine.The offense of discharging a firearm at an inhabited dwelling house (Penal Code section 246) is a felony inherently dangerous to human life for purposes of the second degree felony-murder doctrine. Moreover, the offense does not merge with the resulting homicide so as to preclude application of the felony-murder doctrine.id: 10314
Dismissal of rape charge did not preclude the use of felony-murder rape as a theory of first degree murder.Defendant argued that collateral estoppel or res judicata ought to operate in this case to preclude the use of a felony-murder rape as a theory of first degree murder after formal charges of rape are dismissed. However, dismissal of the felony-murder rape special circumstance constituted no bar under any suggested theory whether double jeopardy, collateral estoppel or res judicata.id: 10315
Trial court did not err in failing to instruct that the felony-murder theory did not apply if the sole purpose of the kidnapping was to assault the victim.Defendant argued the trial court erred in failing to instruct that the felony-murder theory did not apply if the sole purpose of the kidnapping was to assault the victim. However, the kidnapping was a felony not integral to the homicide and which involved no assault, so it was therefore proper to refuse the requested instruction pertaining to felony-murder. Moreover, kidnapping is independent of homicide. Even if kidnapping was an integral part of homicide it carries a separate felonious purpose of moving the victim without consent. Thus, the rule of <i>People v. Ireland</i> (1969) 70 Cal.2d 522, does not apply to kidnapping because it does not involve an assault which is the same conduct which constitutes the homicide.id: 10256
There is no requirement that killings which occur during the perpetration of a felony be the natural and probable consequence of the felony aided and abetted.Defendant argued the trial court erred in failing to instruct the jury that an aider and abettor's liability for felony-murder depends upon a finding that the killing was the natural and probable consequence of the felony aided and abetted. However, there is no such requirement and defendant was guilty of felony-murder if he aided and abetted a kidnapping and a person was killed during the kidnapping. Even if the natural and probable consequence modification applied to felony-murder, instructions would need to be requested by defendant.id: 9642
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245