The California Felony-Murder Rule

The California felony-murder rule makes a defendant guilty of murder if s/he . . . or a fellow perpetrator . . . kills another person while committing certain California felonies . . . even if the killing was a complete
accident!1

The felony-murder rule is an exception to the normal rules of California murder law. Generally, you cannot be convicted of murder in California unless you acted with "malice aforethought"-which basically means intent to kill, or a reckless disregard for human life.2

But the California felony-murder rule changes all that. It allows a defendant to face murder charges...and possibly a murder conviction...even if the prosecutor cannot show that s/he acted with malice, as long as s/he killed someone in connection with the intentional commission of a felony.3

Some examples of incidents that could lead to California murder charges under the felony-murder rule include:

  • After a defendant lights a car on fire (thereby committing the felony of
    arson), the fire spreads to a nearby house, killing someone who is inside.
  • Two defendants, one of them armed with a gun, commit a robbery of a convenience store. The defendant holding the gun accidentally fires it, and the bullet bounces off the ceiling and hits a store clerk, killing her. Both defendants (even the one not holding the gun) may be charged with murder under the felony-murder rule.4
  • A defendant kidnaps an elderly woman (violating Penal Code 207 PC, California's kidnapping law) for ransom. He does not inflict any physical harm or force on her . . . but in her fear she suffers a heart attack and dies. This defendant also may be charged with murder under the felony-murder rule.5

In the article below, our California criminal defense attorneys will address the following:

1. Overview of California's
Felony-Murder Rule
2. Legal Definition of Felony Murder

2.1. Felony murder where defendant committed fatal act

2.2. Felony murder where co-perpetrator committed
fatal act

2.3. Felony murder where other acts caused death

2.4. Inherently dangerous felony

3. Penalties for Murder under the
Felony-Murder Rule

3.1. First-degree felony murder

3.2. Second-degree felony murder

4. Legal Defenses Against Felony-Murder Charges in California

4.1. You did not commit the underlying felony

4.2. The felony was not inherently dangerous

4.3. The merger doctrine

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Murder Law Penal Code 187(a) PC; Penal Code 207 PC California's Kidnapping Law; Legal Definition of a California Felony; Involuntary Manslaughter Laws in California Penal Code 192(b) PC; California Robbery Law Penal Code 211 PC; Attempts to Commit Crimes in California Penal Code sections 21a and 664 PC; California Grand Theft Auto Law Penal Code 487(d)(1) PC & Vehicle Code 10851 VC; California Grand Theft Law Penal Code 487 PC; California Aiding and Abetting Laws; California's Criminal Conspiracy Laws Penal Code 182 PC; Penal Code 451 PC Arson; Penal Code 459 PC Burglary; Penal Code 215 PC Carjacking; California Sex Crimes Defense Attorneys; Penal Code 261 PC Rape; The California Death Penalty; Special Circumstances Murder under California Law Penal Code 190.2 PC; California's Laws Against Manufacturing Drugs and Narcotics (Health & Safety Code 11379.6 HS); Possessing a Bomb or Other Destructive Device Penal Code 12303 PC; California's False Imprisonment Law Penal Code 236 PC; Common Legal Defenses to California Crimes; and Health & Safety Code 11352 HS California's Law On Selling or Transporting Drugs.

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 California felony.6 It doesn't matter whether the killing was intentional, accidental, or negligent...if someone was killed during the commission of a dangerous felony, the felony-murder rule applies.7

This is a striking exception to the normal rule of California murder law . . . which says that you cannot be convicted of murder without malice.8 Malice is defined as either the intent to kill, or a reckless disregard for human life.9

Ordinarily, if you kill someone without malice, then you would most likely be charged with the California crime of involuntary manslaughter. Involuntary manslaughter is the negligent or accidental killing of someone else, without malice.10

Why does California law have this exception-the felony-murder rule-to the principle that murder requires malice?

According to California courts, the felony-murder rule exists for two reasons:

  1. to deter people from killing others during the commission of a felony, and
  2. to deter people from committing the felony itself.11


But it's not clear that those justifications for the felony-murder rule are truly valid. Legal scholars have criticized the rule as unjust and ineffective. England-and many other countries-have actually abolished it.12

2. Legal Definition of the Felony Murder Rule

The legal definition of felony murder revolves around certain "elements of the crime." These are facts that the prosecutor must prove to get a conviction.

The elements of the felony murder rule in California depend on whether the victim's death was caused by:

  1. An act committed by the defendant,
  2. An act committed by the defendant's co-perpetrator in the felony, or
  3. Other causes.

2.1. Felony murder where defendant committed fatal act

In a felony-murder case in which the defendant is alleged to have committed the act that killed the victim . . . the legal definition of the felony murder rule (the "elements") are:

  1. The defendant committed . . . or attempted to commit . . . a certain
    felony;
  2. The defendant intended to commit that felony; AND
  3. While committing or attempting to commit the felony, the defendant caused the death of another person . . . even if s/he did so unintentionally, accidentally, or out of sheer negligence.13
Example: Paul and two other men are robbing a store. Paul is in charge of taking the cashier to the back of the store so the other men can grab money and merchandise. Paul tries to subdue the cashier by hitting him in the head with the gun.  But 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 California robbery (a violent felony).  As a result, Paul is guilty of murder under the felony-murder rule.14

Let's discuss each of these elements in more detail to get a better sense of what they mean.

Committed or attempted a felony

In order to get a conviction for murder under the felony-murder rule in California, a prosecutor must be able to show that the defendant committed...or attempted to commit...a dangerous felony.  This means that . . . in addition to proving the elements of the felony-murder rule . . . the prosecutor has to be able to prove all of the elements of that felony, beyond a reasonable doubt.15

Example: Nathan is accused of murder under the felony-murder rule for running over and killing a pedestrian while committing the felony of grand theft auto.

One of the elements of California grand theft auto is that, when he took the car, Nathan needs to have intended to deprive the owner of it permanently or for a significant period of time.16 The prosecutor can prove that he took the car . . . but fails to convince the jury that he had that intent.

Therefore, Nathan cannot be convicted of murder under the felony-murder rule.

Intent to commit felony

The felony-murder rule does not apply unless the defendant intended to commit the felony . . . before or at the time when s/he caused the victim's death.  If the defendant developed the intent to commit a felony only after the victim was killed, s/he is not guilty of murder on this theory.17

Example: Paul and Bill are acquaintances driving together in Bill's truck. Paul is doing the driving. When Bill criticizes Paul's driving, the two get into a physical fight. Paul ends up beating Bill to death. Once he realizes Bill is dead, Paul decides to take Bill's money and truck.

Paul committed the felony of California grand theft in connection with the killing of Bill. But he did not develop the intent to steal Bill's belongings until after Bill was already dead. Thus, he is not guilty of murder under the felony-murder rule.18

Defendant caused the death of another person while committing
the felony

It's important to note that the California felony-murder rule will still apply even if the victim does not die immediately, or while the felony is still being committed.19

For example, if a victim dies of injuries weeks . . . or even months . . . after the felony occurred, the defendant may still be charged with murder.

Also, it is not necessary that the defendant killed be the intended victim of the felony. If a bystander, police officer, or even a co-perpetrator is killed . . . that too may support charges under the felony-murder rule.20

2.2. Felony murder where co-perpetrator committed fatal act

You also may be charged with felony murder under California law even if you did not commit the act that killed the victim. Specifically, you may be charged - and convicted-if you commit or attempt to commit a felony along with someone else . . . and that other person is the one who actually kills the victim.21

The elements of the legal definition of this kind of felony murder are as follows:

  1. The defendant committed, attempted to commit, aided and abetted, or was part of a conspiracy (as defined in California's criminal conspiracy laws) to commit a felony;
  2. The defendant intended to commit, aid and abet, or have one or more members of the conspiracy commit the felony;
  3. If the defendant did not personally commit or attempt to commit the felony, then someone whom s/he was aiding or abetting . . . or conspiring with . . . personally committed or attempted to commit the felony; AND
  4. The person whom the defendant was aiding and abetting . . . or conspiring with . . . caused a death while committing or attempting to commit the felony.22

It is not even required that the defendant be present when the death occurs!23

Example: Frank, Terry, and Al participate in a conspiracy to rob a bank. They agree that Frank will go into the bank with a gun to get the money; Terry will wait outside and drive the getaway car; and Al will be waiting with another car at a location several miles away, so they can change cars to make it less likely that they'll be caught.

While committing the robbery, Frank accidentally lets the gun go off and kills a bank teller. Frank, Terry, and Al may all be convicted of murder under the felony-murder rule . . . because they all participated in the conspiracy to commit the robbery.

2.3. Felony murder where other acts caused death

Finally, the felony-murder rule may lead to murder charges even when a death occurs that is logically connected to a felony . . . but not directly caused by any of the people involved in committing the felony!

For the felony-murder rule to apply in this sort of situation, the following elements must be proven:

  1. The defendant was involved in the commission of a felony (either by committing it, attempting to commit it, aiding or abetting, or participating in a conspiracy to commit it);
  2. The defendant intended to commit the felony (or aid and abet someone else in committing it, or have a co-conspirator commit it);
  3. Somebody (either the defendant or a co-perpetrator) committed or attempted to commit the felony;
  4. The felony or attempted felony was a substantial factor in causing the death of another person;
  5. The cause of death and the felony/attempted felony were part of one continuous event: AND
  6. There was a logical connection between the felony and the death (this means something more than the death just happening to occur at the same time and place as the felony).24
Example: Jonathan robs an office business. During the robbery, the 60-year-old manager collapses.  It turns out that he has suffered a heart attack, and he dies later at the hospital.

Nothing Jonathan did while committing the robbery directly caused the man's death. But medical testimony showed that the manager would not have had a heart attack then were it not for the shock of the robbery. So there is a "logical connection" between the robbery and the death . . . and Jonathan is guilty of murder under the felony-murder rule.25

BUT

Example: Let's say that while Jonathan is robbing the business, the manager's wife, who has just found out her husband is having an affair, storms in. She is carrying a gun.  The manager and his wife argue, and the gun goes off, killing the manager.In this case, the felony-murder rule would not apply.  Even though the manager's death and Jonathan's robbery took place at the same time and place, there was no "logical connection" between them . . . and the robbery was not a substantial factor in causing the death.

2.4. Inherently dangerous felony

There is one additional element of murder under the felony-murder rule that applies no matter how the victim was killed.  In order for the felony-murder rule to apply, the felony that was being committed or attempted has to be either:

  1. A felony specifically listed in California's first-degree murder law (Penal Code 189 PC), OR
  2. A so-called "inherently dangerous" felony26.

Felonies listed in Penal Code 189 PC

A felony automatically qualifies for felony-murder treatment if it is on the list of felonies set forth in Penal Code 189 PC.27

(If this is the case, the charge will be for first degree felony murder. We discuss the penalties for first vs. second degree felony murder in Section 2 below.)

The felonies that may lead to first-degree felony-murder charges in California include:

Note that you can be convicted of first-degree murder under the felony-murder rule even if the killing occurs while you were only attempting to commit one of the specified felonies.29

Inherently dangerous felonies

The felony-murder rule can still apply even if the underlying felony is not one of the ones listed above. But a defendant can only be criminally liable for felony murder in that case if the underlying felony is considered "inherently dangerous to human life."30

California courts have 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."31

But even this definition is a little vague. And 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.

In a felony-murder trial, it is the judge, not the jury, who determines whether the felony was "inherently dangerous."  In doing so, the judge looks to the legal definition of the felony . . . not to the facts of the particular case.32

Here are some felonies that California judges have found to be "inherently dangerous" (and thus qualifying for the felony-murder rule):

And here are examples of felonies that California courts have determined are not inherently dangerous . . . and so don't give rise to the felony-murder rule:

  • False imprisonment,36
  • Treating a patient without a medical license,37 and
  • Escape from a city or county jail.38
3. Penalties for Murder under the
Felony-Murder Rule

Felony murder in California leads to the same penalties as non-felony
murder.39

As with non-felony murder, there are two "degrees" of felony murder: first degree and second degree. Each carries different potential penalties and sentences. The distinction depends on the type of felony that was being committed (or attempted) when the killing occurred.

3.1. First-degree felony murder

As we discussed above, if the underlying felony is on the list set forth in California's first-degree felony-murder law - Penal Code 189 PC - then the defendant will face charges for first-degree felony murder.40

A first-degree felony murder conviction can lead to any of:

The second and third of these penalties may only be imposed if the felony murder qualifies as so-called special circumstances murder under California law.42

However, many killings that occur while the defendant is committing or attempting one of the felonies listed in Penal Code 189 PC qualify as special circumstances murder43 . . . so life without parole or capital punishment are real possibilities in many first-degree felony murder cases!

3.2. Second-degree felony murder

Second-degree felony murder is any felony murder that does not qualify as first-degree felony murder . . . that is, where the underlying felony is "inherently dangerous" but is NOT one of the ones specifically listed in Penal Code 189 PC.44

For second-degree felony murder, the potential prison sentence is fifteen (15) years to life.45 But if the victim was a peace officer, the sentence may rise to twenty-five (25) years to life . . . or even life without possibility of parole.46

4. Legal Defenses Against Felony-Murder Charges in California

As you can see, felony murder charges in California are no less serious than ordinary murder charges . . . and must be taken very seriously.

Fortunately, there are certain legal defenses that can help you beat these charges . . . or at least get them reduced.

Because California felony-murder law is complicated, these defenses can be quite sophisticated . . . and a highly skilled and experienced California murder defense attorney is essential for arguing them successfully.

4.1. You did not commit the underlying felony

As we discussed above, before the prosecution can convict a defendant of murder based on the felony-murder rule, they must first prove that defendant either committed or attempted to commit the underlying felony.47

As San Bernardino criminal defense attorney Michael Scafiddi48 explains,

"The felony-murder rule only applies once the prosecution proves beyond a reasonable doubt that the defendant committed the underlying felony.  A good defense attorney will seek to prevent that from happening, so that the felony-murder rule never comes into play."

4.2. The felony was not inherently dangerous

If you are charged with second-degree felony murder, you may be able to get the charges reduced if you can convince the judge that the felony you are supposed to have committed or attempted was not "inherently dangerous."49

As we discussed above, the definition of an "inherently dangerous felony" is decided on a case-to-case basis.

For example, let's say you are charged with violating Health and Safety Code 11352 HS, California's law against selling or transporting drugs.50 There are at least 100 different ways to commit this felony.  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 of the law that you allegedly violated in order to determine whether the felony is inherently dangerous.51

If the court decides that the felony you committed or attempted is not inherently dangerous, then your charges are likely to be reduced to charges under Penal Code 192 PC, California's involuntary manslaughter law. Involuntary manslaughter occurs when the defendant unintentionally or recklessly kills another person during the commission of a crime that either

  1. isn't inherently dangerous, or
  2. doesn't rise to the level of a felony.52

While involuntary manslaughter is a serious charge, it is much less serious than a murder charge.

4.3. The merger doctrine

California's felony-murder rule-particularly for second-degree felony-murder cases-has long been criticized as too harsh.  As a result, courts have invented something called the "merger doctrine," which applies only to second-degree felony-murder charges (not to a first-degree felony-murder charge).53

The merger doctrine basically says that the second degree felony-murder rule will not apply when the underlying felony is "assaultive in nature"...that is, when it involves an immediate threat of violent injury.54

This may seem a little strange . . . shouldn't courts be more interested in deterring felonies that are very likely to lead to violent injury? But the merger doctrine exists to make sure that the second-degree felony-murder rule is not applied to cases where the felony and the killing were one act-where the felony "merged" into the homicide. In other words, the felony-murder rule only applies if the felony and the killing are clearly independent acts.55

Example: In connection with a gang rivalry, Steve, a passenger in one car, fires a gun at another, occupied car. One of the occupants of the other car is killed.

Steve has committed the "inherently dangerous" felony of shooting at an occupied vehicle, and he killed someone by doing so. But because the felony of shooting at an occupied car is "assaultive in nature," he can NOT be convicted of murder under the felony-murder rule. (However, he may still be convicted of murder on another theory . . . for example, that he showed a reckless disregard for human life.)56

If you are accused of second-degree felony murder, an attorney who understands the complexities of the merger doctrine may be able to argue that you should not be convicted because the underlying felony was assaultive in nature.

Call Us for Help...
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If you or loved one is charged with felony murder and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

To learn about the Nevada "felony murder" rule, you may visit our page on the Nevada "felony murder" rule.

Legal References:

1 Judicial Council of California Criminal Jury Instructions ("CALCRIM") 540A - Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act. ("To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: 1. The defendant committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 189>; 2. The defendant intended to commit <insert felony or felonies from Pen. Code, § 189>; AND 3. While committing [or attempting to commit] , <insert felony or felonies from Pen. Code, § 189> the defendant caused the death of another person. A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.")

2 Penal Code 187 PC - Murder defined [contrast with felony-murder rule]. ("(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.")

See also Penal Code 188 PC - Malice, express malice, and implied malice defined. ("Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.")

3 See CALCRIM 540A - Felony Murder: First Degree, endnote 1, above.

4 CALCRIM 540B - Felony Murder: First Degree - Coparticipant Allegedly Committed Fatal Act. ("The defendant may [also] be guilty of murder, under a theory of felony murder, even if another person did the act that resulted in the death. I will call the other person the perpetrator.")

5 CALCRIM 540C - Felony Murder: First Degree - Other Acts Allegedly Caused Death. ("To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: 1. The defendant (committed [or attempted to commit][,]/ [or] aided and abetted[,]/ [or] was a member of a conspiracy to commit) <insert felony or felonies from Pen. Code, § 189>; 2. The defendant (intended to commit[,]/ [or] intended to aid and abet the perpetrator in committing[,]/ [or] intended that one or more of the members of the conspiracy commit) <insert felony or felonies from Pen. Code, § 189>; <Give element 3 if defendant did not personally commit or attempt felony. > [3. A perpetrator, (whom the defendant was aiding and abetting/ [or] with whom the defendant conspired), personally committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 189>;] (3/4). The commission [or attempted commission] of the <insert felony or felonies from Pen. Code, § 189> was a substantial factor in causing the death of another person; (4/5). The cause of death and the <insert felony or felonies from Pen. Code, § 189> [or attempted <insert felony or felonies from Pen. Code, § 189>] were part of one continuous transaction; AND (5/6). There was a logical connection between the cause of death and the <insert felony or felonies from Pen. Code, § 189>. The connection between the cause of death and the <insert felony or felonies from Pen. Code, § 189> must involve more than just their occurrence at the same time and place.")

6 See, e.g., CALCRIM 540A - Felony Murder: First Degree, endnote 1, above.

7 People v. Cavitt, (2004) 33 Cal.4th 187, 197.  ("The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.  . . . The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.") (internal quotation marks and citations omitted)

8 Penal Code 187 - Murder defined [contrast with felony-murder rule], endnote 2, above.

9 Penal Code 188 PC - Malice, express malice, and implied malice defined [malice not required under felony-murder rule], endnote 2, above.

10 Penal Code 192 PC - Manslaughter [contrast with the felony-murder rule]. ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: . . . (b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.")

11 People v. Sarun Chun, (2009) 45 Cal.4th 1172, 1198.  ("We must also keep in mind the purposes of the second degree felony-murder rule. We have identified two. The purpose we have most often identified is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. Another purpose is to deter commission of the inherently dangerous felony itself.") (internal quotation marks and citations omitted)

12 See Anup Malani, Does the Felony-Murder Rule Deter? Evidence from FBI Crime Data, New York Times, Dec. 2007 (Working Paper).

13 CALCRIM 540A - Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act, endnote 1, above.

14 Based on People v. Coefield, (1951) 37 Cal.2d 865.

15 CALCRIM 540A - Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act. ("To decide whether the defendant committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 189>, please refer to the separate instructions that I (will give/ have given) you on (that/those) crime[s]. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder. <Make certain that all appropriate instructions on all underlying felonies are given. >")

16 CALCRIM 1800 - Theft by Larceny [elements required to prove that felony occurred for purposes of felony-murder rule.] ("To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant took possession of property owned by someone else; 2 The defendant took the property without the owner's [or owner's agent's] consent; 3 When the defendant took the property (he/she) intended (to deprive the owner of it permanently/ [or] to remove it from the owner's [or owner's agent's] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property); AND 4 The defendant moved the property, even a small distance, and kept it for any period of time, however brief.")

17 CALCRIM 540A - Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act. ("[The defendant must have intended to commit the (felony/felonies) of <insert felony or felonies from Pen. Code, § 189> before or at the time that (he/she) caused the death.]")

18 Based on the facts of People v. Hudson, (1955) 45 Cal.2d 121.

19 CALCRIM 540A - Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act. ("[It is not required that the person die immediately, as long as the cause of death and the (felony/felonies) are part of one continuous transaction.]")

20 See same. ("[It is not required that the person killed be the (victim/intended victim) of the (felony/felonies).]")

21 CALCRIM 540B - Felony Murder: First Degree - Coparticipant Allegedly Committed Fatal Act. ("The defendant may [also] be guilty of murder, under a theory of felony murder, even if another person did the act that resulted in the death. I will call the other person the perpetrator.")

22 See same. ("To prove that the defendant is guilty of first degree murder under this theory [felony murder with someone else committing fatal act], the People must prove that: 1. The defendant (committed [or attempted to commit][,]/ [or] aided and abetted[,]/ [or] was a member of a conspiracy to commit) <insert felony or felonies from Pen. Code, § 189>; 2. The defendant (intended to commit[,]/ [or] intended to aid and abet the perpetrator in committing[,]/ [or] intended that one or more of the members of the conspiracy commit) <insert felony or felonies from Pen. Code, § 189>; 3. If the defendant did not personally commit [or attempt to commit] <insert felony or felonies from Pen. Code, § 189>, then a perpetrator, (whom the defendant was aiding and abetting/ [or] with whom the defendant conspired), personally committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 189>; [AND] 4. While committing [or attempting to commit] , <insert felony or felonies from Pen. Code, § 189> the perpetrator caused the death of another person(;/.)")

23 See same. ("[It is not required that the defendant be present when the death occurs.]")

24 CALCRIM 540C - Felony Murder: First Degree - Other Acts Allegedly Caused Death. ("To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: 1. The defendant (committed [or attempted to commit][,]/ [or] aided and abetted[,]/ [or] was a member of a conspiracy to commit) <insert felony or felonies from Pen. Code, § 189>; 2. The defendant (intended to commit[,]/ [or] intended to aid and abet the perpetrator in committing[,]/ [or] intended that one or more of the members of the conspiracy commit) <insert felony or felonies from Pen. Code, § 189>; <Give element 3 if defendant did not personally commit or attempt felony. > [3. A perpetrator, (whom the defendant was aiding and abetting/ [or] with whom the defendant conspired), personally committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 189>;] (3/4). The commission [or attempted commission] of the <insert felony or felonies from Pen. Code, § 189> was a substantial factor in causing the death of another person; (4/5). The cause of death and the <insert felony or felonies from Pen. Code, § 189> [or attempted <insert felony or felonies from Pen. Code, § 189>] were part of one continuous transaction; AND (5/6). There was a logical connection between the cause of death and the <insert felony or felonies from Pen. Code, § 189>. The connection between the cause of death and the <insert felony or felonies from Pen. Code, § 189> must involve more than just their occurrence at the same time and place.")

25 Based on the facts of People v. Stamp, (1969) 2 Cal.App.3d 203.

26 People v. James, (1998) 62 Cal.App.4th 244, 257-58. ("The felony-murder rule artificially imposes malice as to one crime because of defendant's commission of another and thereby satisfies the standard of culpability necessary to raise a homicide to murder. The felony-murder rule applies to both first and second degree murder. Under the first degree felony-murder rule, a homicide is first degree murder if it is committed in the perpetration or attempted perpetration of statutorily specified felonies (including arson, robbery and rape). Under the second degree felony-murder rule, a homicide is second degree murder if it is committed in the perpetration or attempted perpetration of any felony that is inherently dangerous to human life.") (citations and internal quotation marks omitted)

27 Penal Code 189 PC - Murder [including felony murder]; degrees. ("All murder which is...committed in the perpetration of, or attempt to perpetrate, [Penal Code 415 PC] arson, [Penal Code 261 PC] rape, [Penal Code 215 PC] carjacking, [Penal Code 211 PC] robbery, [Penal Code 459 PC] burglary, [Penal Code 203 [PC] mayhem, [Penal Code 207 PC] kidnapping, [Penal Code 219 PC] train wrecking, or any act punishable under [Penal Code Section 206 [PC, torture], [or California sex crimes punished under] [Penal Code 286 PC unlawful acts of sodomy] , [Penal Code 288 PC lewd acts with a minor], [Penal Code 288a PC unlawful acts of oral copulation], or [Penal Code 289 PC forcible acts of penetration]... is murder of the first degree.")

28 See same.

29 CALCRIM 540A - Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act, endnote 1, above.

30 People v. James, 62 Cal.App.4th at 258, endnote 26, above.

31 See same, at 258. ("For many years, the California Supreme Court found it unnecessary to define "inherently dangerous felony." In People v. Burroughs, supra, 35 Cal.3d 824, however, it referred to an inherently dangerous felony as one which "by its very nature, ... cannot be committed without creating a substantial risk that someone will be killed ...." ( Id., at p. 833.) Later, in People v. Patterson, supra, 49 Cal.3d 615, it defined an inherently dangerous felony as "an offense carrying 'a high probability' that death will result." ( Id., at p. 627 (lead opn. of Kennard, J.); see also id., at pp. 640 (conc. and dis. opn. of Mosk, J., joined by Broussard, J.), 641 (conc. and dis. opn. of Panelli, J.).) Most recently, the court reaffirmed both of these definitions, treating them as if they were equivalent and interchangeable.")

32 People v. Patterson, (1989) 49 Cal.3d 615, 620. ("In determining whether the felony is inherently dangerous, "we look to the elements of the felony in the abstract, not the particular 'facts' of the case.")

33 People v. James 62 Cal.App.4th at 270, endnote 26, above.  ("...one cannot commit the felony of manufacturing methamphetamine without possessing at least some hazardous substances; without using, pouring and mixing those substances; or without applying heat. Thus, manufacturing methamphetamine "by its very nature, ... cannot be committed without creating a substantial risk that someone will be killed ...." ( People v. Burroughs, supra, 35 Cal.3d at p. 830.)")

34 People v. Nichols, (1970) 3 Cal.3d 150, 163 (overruled on other grounds).  ("Certainly the burning of a motor vehicle, which usually contains gasoline and which is usually found in close proximity to people, is inherently dangerous to human life. We therefore conclude that the willful and malicious burning of a motor vehicle calls into play the second degree felony-murder rule.")

35 People v. Morse, (1992) 2 Cal.App.4th 620, 646.  ("We do not regard the question as a close one. 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. Almost uniquely, bombs have an "inherently dangerous nature." They are so dangerous that even when not set to explode, their possession violates the statute As one court observed: "A bomb has special characteristics which obviously differentiate it from all other objects. In the first place, the maker often loses control over the time of its detonation. ... In the second place, it may wreak enormous havoc on persons and property. In the third place, its victims are often unintended sufferers. And finally, considering its vast destructive potentialities, it is susceptible of fairly easy concealment. We hold that section 12303.2 is an inherently dangerous felony [and the felony-murder rule applies].") (citations omitted)

36 People v. Henderson, (1977) 19 Cal.3d 86, 93.  ("In determining whether the offense of felony false imprisonment is inherently dangerous to human life [and thus can activate the felony-murder rule], we proceed through a two-step analysis. First, we conclude that the primary element of the offense, namely the unlawful restraint of another's liberty, does not necessarily involve the requisite danger to human life. The aspect of confinement is not life threatening. It has been said that "[a]ll that is necessary to make out a charge of false imprisonment is that the individual be restrained of his liberty without any sufficient complaint or authority therefor .... Temporary detention is sufficient, and the use of actual physical force is not necessary." (Ware v. Dunn (1947) 80 Cal.App.2d 936, 943 [183 P.2d 128].) The unlawful conduct by which the confinement is accomplished also does not necessarily involve a hazard to the victim's life. "'The wrong may be committed by acts or by words, or both, and by merely operating upon the will of the individual or by personal violence, or both..."' ( People v. Agnew (1940) 16 Cal.2d 655, 660 [107 P.2d 601].) The conduct may involve merely the simple act of announcing without probable cause the making of a citizen's arrest, the natural consequence of which is to cause the police to take the victim into custody. ( Id., at pp. 659-660.)")

37 People v. Burroughs, (1984) 35 Cal.3d 824, 830 (overruled on other grounds). ("Consequently, we are disinclined to rule today that the risks set forth in section 2053 are so critical as to render commission of this felony of necessity inherently dangerous to human life. Indeed, were we to interpret either the risk of great bodily harm or serious mental illness as being synonymous with the risk of death for purposes of the felony-murder rule, we would be according those terms a more restrictive meaning than that which the Legislature obviously meant them to have in the definition of the felony itself.")

38 People v. Lopez, (1971) 6 Cal.3d 45, 51. ("It is defendant's violation of this statute which was the basis of the second degree felony-murder instruction in this case. We have concluded that the giving of such an instruction was error because the proscribed offense, viewed in the abstract, is not a felony inherently dangerous to human life.")

39 Penal Code 190 PC - Punishment for murder [including felony murder]. ("(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5. Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.")

40 Penal Code 189 PC - Murder [including felony murder]; degrees, endnote 27, above.

41 Penal Code 190 PC - Punishment for murder [including felony murder], endnote 39, above.

42 Penal Code 190.2 PC - Death penalty or life imprisonment without parole; special circumstances [applies to some felony-murder cases].

43 See same. ("(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: . . . (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: (A) Robbery in violation of Section 211 or 212.5. (B) Kidnapping in violation of Section 207, 209, or 209.5. (C) Rape in violation of Section 261. (D) Sodomy in violation of Section 286. (E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288. (F) Oral copulation in violation of Section 288a. (G) Burglary in the first or second degree in violation of Section 460. (H) Arson in violation of subdivision (b) of Section 451. (I) Train wrecking in violation of Section 219. (J) Mayhem in violation of Section 203. (K) Rape by instrument in violation of Section 289. (L) Carjacking, as defined in Section 215. (M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder.")

44 Penal Code 189 PC - Murder [including felony murder]; degrees. ("All other kinds of murders are of the second degree.")

45 Penal Code 190 PC - Punishment for murder [including felony murder], endnote 39, above.

46 See same, Punishment for murder [including felony murder]. ("(b) Except as provided in subdivision (c), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 25 years to life if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties. (c) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of life without the possibility of parole if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, and any of the following facts has been charged and found true: (1) The defendant specifically intended to kill the peace officer. (2) The defendant specifically intended to inflict great bodily injury, as defined in Section 12022.7, on a peace officer. (3) The defendant personally used a dangerous or deadly weapon in the commission of the offense, in violation of subdivision (b) of Section 12022. (4) The defendant personally used a firearm in the commission of the offense, in violation of Section 12022.5.")

47 See CALCRIM 540A - Felony Murder: First Degree, endnote 1, above.

48 San Bernardino criminal defense attorney Michael Scafiddi is a former police sergeant with the Banning Police Department. He now uses that inside knowledge to help defend clients accused of serious California crimes, including felony murder, in San Bernardino and Riverside Counties. Scafiddi routinely makes appearances at the Murrieta Southwest Justice Center and at courthouses in Fontana, Banning, Barstow, Palm Springs, and Joshua Tree.  .

49 People v. James, 62 Cal.App.4th at 258, endnote 26, above.

50 Health and Safety Code 11352 HS -- Sale or transportation of drugs.  ("(a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.")

51 See People v. Patterson, 49 Cal.3d at 625, endnote 32, above.  ("There are more than 100 different controlled substances that fall within the confines of Health and Safety Code section 11352. To create statutes separately proscribing the importation, sale, furnishing, administration, etc., of each of these drugs, would require the enactment of hundreds of individual statutes. It thus appears that for the sake of convenience the Legislature has included the various offenses in one statute. The determination whether a defendant who furnishes cocaine commits an inherently dangerous felony should not turn on the dangerousness of other drugs included in the same statute, such as heroin and peyote; nor should it turn on the danger to life, if any, inherent in the transportation or administering of cocaine. Rather, each offense set forth in the statute should be examined separately to determine its inherent dangerousness. For the reasons discussed above, we hold the Court of Appeal and the trial court erred in concluding that Health and Safety Code section 11352 should be analyzed in its entirety to determine whether, in furnishing cocaine, defendant committed an inherently dangerous felony [for purposes of the felony murder rule].")

52 Penal Code 192 PC - Involuntary manslaughter [charge reduction from felony murder].  ("(b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.")

53 People v. Farley, (2009) 46 Cal.4th 1053.  ("On automatic appeal, the Supreme Court, George, C.J., held that...merger doctrine does not apply to first degree felony murder, overruling People v. Wilson, 1 Cal.3d 431, 82 Cal.Rptr. 494, 462 P.2d 22...")

54 People v. Sarun Chun, 45 Cal.4th at 1200, endnote 11, above.  ("When the underlying felony is assaultive in nature, such as a violation of [California Penal Code] section 246 or 246.3, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction. An "assaultive" felony is one that involves a threat of immediate violent injury. (See People v. Chance (2008) 44 Cal.4th 1164, 1167-1168, 81 Cal.Rptr.3d 723, 189 P.3d 971.) In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive. For example, in People v. Smith, supra, 35 Cal.3d at page 806, 201 Cal.Rptr. 311, 678 P.2d 886, the court noted that child abuse under section 273a "includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect." Looking to the facts before it, the court decided the offense was "of the assaultive variety," and therefore merged. ( Smith, supra, 35 Cal.3d at pp. 806-807, 201 Cal.Rptr. 311, 678 P.2d 886.) It reserved the question whether the nonassaultive variety would merge. ( Id. at p. 808, fn. 7, 201 Cal.Rptr. 311, 678 P.2d 886.) Under the approach we now adopt, both varieties would merge. This approach both avoids the necessity of consulting facts that might be disputed and extends the protection of the merger doctrine to the potentially less culpable defendant whose conduct is not assaultive.")

55 See same, at 1189. ("The merger doctrine developed due to the understanding that the underlying felony must be an independent crime and not merely the killing itself. Thus, certain underlying felonies "merge" with the homicide and cannot be used for purposes of felony murder.")

56 Based on the facts of the same.

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