The Gun Counter

Jered wrote:I don't think that they can.

randy wrote:I loves me some Felony Murder laws!

Just the thought of the look on the face of some choir boy when he finds out he's going down for murder when his buddy Sumdood failed in the victim selection process gives me a warm happy feeling.

Precision wrote:

randy wrote:I loves me some Felony Murder laws!

Just the thought of the look on the face of some choir boy when he finds out he's going down for murder when his buddy Sumdood failed in the victim selection process gives me a warm happy feeling.

I want to agree, but it smacks of "The State" catching you post facto or any way they can. That is a very slippery slope, in my book.

1. Overview of California’s Felony-Murder Rule

California’s felony-murder rule creates murder liability for individuals who kill another human being during the commission of a dangerous felony. California courts have long relied on this rule, holding that someone who engages in reckless behavior shouldn’t be excused from killing someone just because it wasn’t part of their original plan.

The rule has two stated purposes. First is to deter people from killing others during the commission of another felony. Second is to deter the commission of the underlying felony itself.4 It doesn’t matter whether the killings were intentional, accidental, or negligent…if someone was killed during the commission of a felony, the felony-murder rule attaches.5

• Example: Armed with a pistol, Mike barges into a convenience store, intending to rob the place. When the clerk is slow to empty out the cash register, Mike fires a warning shot in the air. The bullet ricochets and hits a customer, killing him. Even though Mike never intended to shoot anybody, let alone kill anybody, he is liable for murder since the bystander was killed during the commission of a violent felony.

The connection between the felony and the death

There is no requirement that the defendant kills the victim in furtherance of the underlying felony. As long as the death is logically connected to the underlying felony, the felony-murder rule applies. This means that even unforeseeable deaths will subject a defendant to murder charges, so long as there is more than a mere coincidence between the time and place of the murder and the other felony.

• Example: John goes into a gas station to commit a robbery. While being held-up at gunpoint, the cashier suffers a heart attack and dies. Under these circumstances, the felony-murder rule attaches.6 But…
  
  Let’s say instead that while John was robbing the gas station, another person, unknown to John, comes into the gas station to kill the cashier. The unknown man is the cashier’s boyfriend and he kills the cashier because he suspects her of cheating on him. Under these circumstances, the felony-murder rule would not likely apply to John’s underlying robbery, because the killing was purely coincidental.

2. California’s First Degree Felony-Murder Rule

California’s first degree felony-murder rule makes one liable for first degree murder. It only applies to a specific list of felonies. These include7:

• * Penal Code 451 PC arson,
  
  
  * Penal Code 211 PC robbery,
  
  
  * Penal Code 459 PC burglary,
  
  
  * Penal Code 215 PC carjacking,
  
  
  * Penal Code 219 PC train wrecking,
  
  
  * Penal Code 207 PC kidnapping,
  
  
  * Penal Code 203 PC mayhem,
  
  
  * Torture, and
  
  
  * certain California sex crimes, including Penal Code 261 PC rape, Penal Code 286 PC unlawful acts of sodomy, unlawful acts of oral copulation, and Penal Code 289 PC forcible acts of penetration, and Penal Code 288 PC lewd acts with a minor.

If a killing results during the commission of one of these felonies, the felony murder rule attaches, regardless of whether the killing was intentional or accidental.

• Example: During a three-man robbery, Paul is in charge of taking the cashier to the back of the store so that the other men could grab money and merchandise. Paul tries to subdue the cashier by hitting him in the head with the gun. When the cashier attempts to get back up, Paul again hits him in the head with the gun. However, this time the gun discharges and fires a bullet into the cashier’s head, killing him instantly.
  
  Despite the fact that the killing was accidental, it occurred during the commission of a robbery (one of the above listed felonies). As a result, the first degree felony-murder rule attaches and makes Paul liable for first degree murder.8

Furthermore, the felony-murder rule applies as long as the defendant had the intent to commit one of the above listed felonies.9 So even if the defendant…for whatever reason…fails in his/her attempt to commit the felony, he/she can still be charged with murder if the evidence proves that the defendant intended to commit the crime.10

• Example: The Supreme Court of California upheld a felony-murder conviction where the underlying felony was deemed to be attempted rape. The victim’s naked body was found in a field.11 She had been beaten to death and had bruises and scratches on the outer surface of her genital areas and thighs.
  
  The testimony revealed that the defendant and the victim had been drinking and "fooling around" at a bar and in a taxi and that when they got back to the defendant’s van, the victim no longer wished to remain with the defendant. (The defendant was a carnival worker and he and the other workers lived in vans next to the field). Evidence also revealed that the defendant had been twice frustrated by his attempts to have sex that night: once by a woman he met just prior to the victim and then by the victim.
  
  Even though there was no direct evidence of intercourse, the jury found there was enough evidence to infer that the woman had been killed during the commission of an attempted rape (rape being one of the above listed felonies). The court upheld the jury’s finding, permitting a first degree murder conviction based on the first degree felony-murder rule.

Proving the case

Before the prosecution can convict a defendant of murder based on the felony-murder rule, the prosecutor must first prove that defendant either committed or attempted to commit the underlying felony.

If the prosecution is unable to prove that crime…or the attempted crime…the felony-murder rule cannot be the basis of a murder conviction. As San Bernardino criminal defense attorney Michael Scafiddi explains12, "The felony-murder rule only attaches once the prosecution proves beyond a reasonable doubt that the defendant committed the underlying felony, which is the standard used for criminal trials.13 The defense attorney will seek to prevent that from happening, so that the felony-murder rule never comes into play."

3. California’s Second Degree Felony-Murder Rule

While the first degree felony-murder rule may be automatically applied if a death results during the commission of any of felonies listed above, the second degree felony murder rule is more situational. It applies to all felonies (1) "inherently dangerous" to human life, and (2) not specifically included under the first-degree felony-murder rule.14

The court has defined an "inherently dangerous" felony as "one that cannot be committed without creating a substantial risk that someone will be killed". Put another way, an inherently dangerous felony is one "carrying a high probability that death will result".15

There is currently no set list of which felonies are considered "inherently dangerous". As a result, courts must evaluate this on a case-by-case basis.

Determining which felonies are "inherently dangerous"

The judge, not the jury, must first determine whether the alleged felony is inherently dangerous. In doing so, the judge looks to the legal definition of the crime, not to the facts of the particular case.16

But when the alleged felony can be violated in a number of ways, the court will look at the specific crime of which the defendant is accused.

Example: With regard to Health and Safety Code 11352 HS, California’s law against selling or transporting drugs, there are at least 100 variations on ways to commit this felony.17 If you are accused of killing someone while you were engaged in selling or transporting a particular controlled substance, the court will look at the specific sub-section that you allegedly violated in order to determine whether the felony is inherently dangerous.18

For example, under H&S 11352, one could be convicted based on selling PCP or based on furnishing vicodin to someone without a prescription. The statute encompasses either of these crimes. While selling PCP may be inherently dangerous, furnishing vicodin may not be. This is the type of analysis in which the court will engage.

<SNIP - continued at the link>

Precision wrote:I want to agree, but it smacks of "The State" catching you post facto or any way they can. That is a very slippery slope, in my book.