The California "Felony-Murder Rule"
The California felony-murder rule makes a defendant liable for murder if he or an accomplice kills another person, even accidentally, during the commission of certain felonies.
In general, before a defendant can be convicted of either first or second degree murder, the prosecutor must prove that he/she acted with malice (an intent to kill, or a reckless disregard for human life).1
However, the California felony-murder rule is an alternative basis on which a person may be charged with murder. It applies even in the absence of malice. In fact, it imputes malice to someone who kills another person during the commission of another crime, regardless of whether the death was intentional or accidental.2 When imposed, it elevates a potential manslaughter charge to murder.
In the article below, our California criminal defense attorneys3 will address the following:
(Click on a title to proceed directly to that section)
1. Overview of California's Felony-Murder Rule
2. First Degree Felony-Murder Rule
3. Second Degree Felony-Murder Rule
4. Second Degree Felony-Murder and the
Merger Doctrine
5. What Deaths are Covered by the
Felony-Murder Rule?
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 Penal Code 187 California Murder Law, Penal Code 192 Involuntary Manslaughter, and California Violent Felonies.
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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.
Examples of felonies that California courts have found to be inherently dangerous
The following are examples of some felonies that the courts found to be inherently dangerous.
- Manufacturing methamphetamines
In People v. James, the defendant was convicted of second degree murder under the felony-murder rule when three of her children were killed in an explosion while she was manufacturing methamphetamines in her home-based lab. The court held that because manufacturing methamphetamines necessarily involves possessing, using, and mixing hazardous, flammable substances with heat, there is a substantial risk that someone will be killed in the process.19
- Willfully or maliciously burning a car
In People v. Nichols, the defendant was convicted of murder under the second degree felony-murder rule. At the time of the offense, the defendant's wife (whom he was separated from) was living in a home with another couple and the couple's two children.
The defendant was angry with his wife for possibly seeing another man. He went to the home where the wife lived and set fire to her car (which was in the garage). Although he claimed he only intended to scare her, the fire spread to the garage and to the house, killing the couple's two children.
The court held that intentionally burning a car…which normally contains gasoline and is typically found in close proximity to people…is inherently dangerous to human life and triggers the second degree felony-murder rule.20
- Possessing a bomb in a residential area
In People v. Morse, police searched the defendant's residence. They ultimately found two bombs hidden in the back of the garage in a cabinet. While the bomb squad was trying to dismantle the second bomb, it exploded, killing two of the officers.
Although the bombs were hidden, and not intended to kill the officers, the court held that possessing a bomb in a residential area is inherently dangerous, given the nature of an explosive device.21
This case is also a good example of the above rule -- that the court doesn't look to the facts of the specific case when determining whether a felony is inherently dangerous. Here, the defendant kept the bombs hidden in a locked closet. There was no reason to think that they would accidentally explode. However, because the court looks at the felony offense in general and not at the specific conduct of the defendant, the defendant was still convicted of murder under the felony-murder rule.
Examples of felonies that California courts have found not to be inherently dangerous
The following are examples of some felonies that the courts determined were not inherently dangerous.
- False imprisonment
In People v. Henderson, the defendant and an accomplice were convinced that a man named Reinesto stole the defendant's TV. Reinesto maintained he didn't take the TV and convinced the defendant and accomplice to take him to see people who could support his alibi that he was with them at the time of the alleged theft. The defendant and his accomplice had a gun and a club and ordered Reinesto into their car. This false imprisonment was the underlying felony for the felony-murder rule.
When the men went to the house to confirm the alibi, the defendant was pointing the gun at Reinesto's head. Reinesto ducked and turned to remove the gun from his head when it discharged and shot and killed the woman who was confirming the alibi.
The court ruled that even though there could be instances of false imprisonment that could lead to reasonably foreseeable deaths, the crime as a whole is not inherently dangerous and could not support a felony-murder conviction.22
- Treating a patient without a doctor's license
In People v. Burroughs, the defendant was a self-proclaimed "healer" and convinced the a leukemia patient that he could help treat his disease. The defendant gave the patient a variety of juices, teas, and intense massages in an effort to heal him. The victim ultimately died from a massive hemorrhage that was reportedly due to the defendant's massages.
The court ruled that one can commit the felony of practicing medicine without a license without endangering human life. Therefore the court overturned the defendant's murder conviction which was based on the incorrectly applied second degree felony-murder rule.
The distinction between second degree felony-murder and involuntary manslaughter
The preceding case is a good example of the distinction between an application of the second degree felony-murder rule and an involuntary murder charge. Under the facts of this case, prosecutors should have charged Penal Code 192, California's involuntary manslaughter law. Involuntary manslaughter is when the defendant unintentionally or recklessly kills another person based on an act that either
- isn't inherently dangerous, or
- doesn't rise to the level of a felony.23
These two issues are the key distinctions between second degree murder and involuntary manslaughter.
4. California's Felony-Murder Rule and the
Merger Doctrine
Since its inception in 1872, the second degree felony-murder rule has received much criticism for being unduly harsh. One of the ways that the courts limited its scope was by applying the merger doctrine. Although the merger doctrine once applied to first degree felony-murder as well, that is no longer the case.24
The merger doctrine prohibits application of the second degree felony-murder rule when the underlying felony is assaultive in nature…that is, when it involves an immediate threat of violent injury. This is the case even though an "assaultive" felony clearly constitutes an inherent danger.25
The courts adopted this limitation because the purposes of the felony-murder rule…to deter accidental or negligent killings and to deter the inherently dangerous crime itself…are not served under these types of circumstances.
When this is the case, the underlying felony "merges" into the homicide and does not subject the defendant to the felony-murder rule.26
Example: Courts have held that shooting at an inhabited house or an occupied car are both inherently dangerous felonies. If…during the commission of one of these "assaultive" crimes, someone is killed…the death will merge into the homicide.
Given these facts, the felony-murder rule would not attach, which means that the jury would have to determine on its own whether or not the defendant (1) acted with malice (which would support a murder conviction), or (2) acted without malice (which would support a manslaughter conviction).
5. What Deaths are Covered by California's
Felony-Murder Rule?
The final piece in the California felony-murder rule puzzle is understanding just how far it reaches. So the question becomes, "for whose deaths will the defendant be held responsible?" And the answer is that it depends…
Typically, the felony-murder rule only applies to deaths that result from actions committed by the defendant or an accomplice.27 This means that if a victim, the police, or another third-party intervenes…and ultimately kills another person…the rule will not apply.28
However, it is important to understand that if the defendant and any accomplices act with reckless disregard for human safety…and a victim, officer, or other third-party kills another person…they could still be liable for murder (under a theory of implied malice).
Example: In People v. Caldwell, the defendant and two co-felons were involved in a police shoot-out following their completed robbery. Each of the three men played a role in leading one of the officers to shoot and kill one of the robbers, as they all appeared to be armed, threatening to shoot the officers.
The court ruled that had the men not acted as they did, the policeman wouldn't have responded by shooting the robber. The robbers' acts in and of themselves were so reckless that they justified a finding of implied malice. Because of these facts, they could be held jointly liable for the murder…just not under the felony-murder rule.29
But if an accomplice kills another person
- during the commission of the underlying felony, and
- the killing is logically connected to the felony,
the general rule is that all accomplices are equally responsible as if any one of them had done the killing.30 This even includes situations where one co-felon kills another co-felon.31
The exception to these rules involves the situation where an accomplice joins the crime after the death has already occurred.32
Example: A man and his uncle pull up to a gas station. The uncle goes in to buy cigarettes while the nephew waits in the car. While inside, the uncle shoots and kills the attendant and then runs out of the store with the cash register. He throws the cash register on the nephew's lap and drives off.
While driving, he instructs the nephew to open the register, withdraw the money, and throw the register out into the bushes. The nephew complies with all these orders.
Under these facts, the nephew could be liable for the robbery under an "aider and abettor" theory. But he would not be liable as an accomplice to the murder. Since the killing was done prior to the nephew's involvement in the robbery, the felony-murder rule would not apply to him.33
Contact us for help...
For more information about California's felony-murder rule, or to discuss your case confidentially with one of our attorneys, please don't hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Nevada criminal defense attorneys have experience defending clients who have been charged with crimes that fall under Nevada's felony-murder rule. For more information about Nevada's murder laws, we invite you to contact our local attorneys at one of our Nevada law offices.34
For information about felony murder laws in Nevada, go to our article on felony murder laws in Nevada.
Legal References:
1Prosecutors may charge an individual with first degree murder or second degree murder under Penal Code 187, California's murder law anytime someone kills another person with malice. "Malice" is defined as the desire to harm another person. With respect to murder, malice can be express or implied.
Malice is "express" when there is clear evidence that someone intended to kill another person. This type of malice is seen in connection with first degree murder. Malice is "implied" when the person acted with a reckless disregard for human life. Implied malice is seen in connection with second degree murder charges.
2People v. Coefield (1951) 37 Cal.2d 865, 868. ("The evidence is clearly sufficient to support the verdict of murder in the first degree in view of the provisions of section 189 of the Penal Code that "All murder ... which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree." Defendant argues that it must first be shown that there was a murder, not merely a killing, and that to have a murder there must be a malicious killing and an intent to kill. (See Pen. Code, § 187.) It has been held, however, that when one enters a place with a deadly weapon for the purpose of committing robbery, malice is shown by the nature of the attempted crime, and the law fixes upon the offender the intent which makes any killing in the perpetration of or attempt to perpetrate the robbery a murder of the first degree. ( People v. Bostic, 167 Cal. 754, 760-761 [141 P. 380]; see People v. Milton, 145 Cal. 169, 171-172 [78 P. 549]; People v. Olsen, 80 Cal. 122, 126-127 [22 P. 125].) Other cases have pointed out that such a killing is murder of the first degree by force of section 189 of the Penal Code, regardless of whether it was intentional or accidental. ( People v. Valentine, 28 Cal.2d 121, 135 [169 P.2d 1]; People v. Lindley, 26 Cal.2d 780, 791 [161 P.2d 227]; People v. Boss, 210 Cal. 245, 249 [290 P. 881]; People v. Denman, 179 Cal. 497, 498 [177 P. 461].) Here, as we have seen, the evidence, including defendant's own testimony, shows that the killing was committed in connection with conduct intended to facilitate escape after the robbery and as part of one continuous transaction; accordingly, it constituted murder of the first degree by the terms of the statute. (See People v. Chavez, ante, pp. 656, 670 [234 P.2d 632]; People v. Rye, 33 Cal.2d 688, 692-693 [203 P.2d 748]; People v. Boss, supra, 210 Cal. at pp. 250-252.) In such a case the jury has no option but to return a verdict of murder of the first degree, whether the killing was done intentionally or accidentally.")
3Our California criminal defense attorneys have local law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.
4People 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." ( People v. Washington, supra, 62 Cal.2d at p. 781, 44 Cal.Rptr. 442, 402 P.2d 130.) Another purpose is to deter commission of the inherently dangerous felony itself. ( Robertson, supra, 34 Cal.4th at p. 171, 17 Cal.Rptr.3d 604, 95 P.3d 872 ["the second degree felony-murder rule is intended to deter both carelessness in the commission of a crime and the commission of the inherently dangerous crime itself"]; Hansen, supra, 9 Cal.4th at pp. 310, 311, 314, 36 Cal.Rptr.2d 609, 885 P.2d 1022.)")
5People 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. ( Burton, supra, 6 Cal.3d at p. 388, 99 Cal.Rptr. 1, 491 P.2d 793.) "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." ( Ibid.)")
6These facts loosely resemble the case of People v. Stamp (1969) 2 Cal.App.3d 203 where doctors testified that, despite the victim's history of heart disease, he would not have suffered his fatal heart attack "but for" the robbery.
7California Penal Code 189 PC Murder. ("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.")
8These facts were taken from People v. Coefield (1951) 37 Cal.2d 865.
9See same at 869. ("It follows that it was not error to instruct the jury that the only criminal intent which the prosecution had to show was a specific intent to rob Tokus and that it was not required to prove a deliberate or premeditated killing or to prove any intent to kill. ( People v. Milton, 145 Cal. 169, 172 [78 P. 549]; see People v. Denman, 179 Cal. 497, 498-499 [177 P. 461]; People v. Boss, 210 Cal. 245, 249-250 [290 P. 881].)")
10People v. Moore (1957) 48 Cal.2d 541, 547. ("…the testimony, including that showing defendant's obvious desire and purpose to have sexual intercourse with Mrs. Hoag, her refusal to go to the van for that purpose, the nature of the injuries to her body when found near the van, and the fact that her clothing had been torn off, was sufficient evidence to sustain the implied finding that defendant had killed her in the course of an attempted rape. ( People v. Lewis, 220 Cal. 510 [31 P.2d 357]; People v. Wheelock, 6 Cal.Unrep. 914 [68 P. 579].) Such a killing, under the felony murder doctrine (Pen. Code, § 189), constitutes first degree murder.")
11See same. The facts depicted in the example were taken from the above case.
12San Bernardino criminal defense attorney Michael Scafiddi defends clients throughout the Inland Empire, including Banning, Barstow, Rancho Cucamonga, Hemet, Riverside, and San Bernardino County.
13People v. Granados (1957) 49 Cal.2d 490. This case holds that in order to sustain a first degree felony-murder conviction, the jury must first determine that the defendant committed the underlying felony beyond a reasonable doubt. In this case, the trial court erred by not instructing the jury on this rule of law.
14See same. ("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. [Citation.]" ( People v. Wells (1996) 12 Cal.4th 979, 989 [50 Cal.Rptr.2d 699, 911 P.2d 1374], quoting People v. Phillips (1966) 64 Cal.2d 574, 583, fn. 6 [51 Cal.Rptr. 225, 414 P.2d 353].) "The felony-murder rule applies to both first and second degree murder." ( People v. Hansen (1994) 9 Cal.4th 300, 308 [36 Cal.Rptr.2d 609, 885 P.2d 1022].) 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. ( Ibid.)")
15People v. James (1998) 62 Cal.App.4th 244, 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. ( People v. Hansen, supra, 9 Cal.4th at p. 309.)")
16People 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." ( People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5; People v. Phillips (1966) 64 Cal.2d 574, 582 [ 51 Cal.Rptr. 225, 414 P.2d 353]; People v. Henderson (1977) 19 Cal.3d 86, 93 [ 137 Cal.Rptr. 1, 560 P.2d 1180]; People v. Burroughs (1984) 35 Cal.3d 824, 829-830 [ 201 Cal.Rptr. 319, 678 P.2d 894].)")
17California Health and Safety Code 11352 -- 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.")
18See People v. Patterson at 625, endnote 18, 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.")
19People v. James at 270, endnote 17, 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.)")
20People v. Nichols (1970) 3 Cal.3d 150 (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.")
21People v. Morse (1992) 2 Cal.App.4th 620, 646. ("We must view the elements of the offense, not the particular facts of the instant offense. In viewing the elements our task is not to determine if it is possible (i.e., "conceivable") to violate the statute without great danger. By such a test no statute would be inherently dangerous. Rather the question is: does a violation of the statute involve a high probability of death? ( People v. Patterson, supra, 49 Cal.3d 615, 617.) If it does, the offense is inherently dangerous. 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." ( People v. Heideman (1976) 58 Cal.App.3d 321, 335 [130 Cal.Rptr. 349].) They are so dangerous that even when not set to explode, their possession violates the statute. ( People v. Westoby (1976) 63 Cal.App.3d 790, 795 [134 Cal.Rptr. 97].) 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." ( People v. Superior Court (Pebbles) (1970) 6 Cal.App.3d 379, 382 [85 Cal.Rptr. 803].) We hold that section 12303.2 is an inherently dangerous felony.")
22People v. Henderson (1977) 19 Cal.3d 86, 93. ("In determining whether the offense of felony false imprisonment is inherently dangerous to human life, 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.)")
23California Penal Code 192 -- Involuntary manslaughter. ("(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.")
24People 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…")
25People v. Sarun Chun (2009) 45 Cal.4th 1172, 1200. ("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.")
26See same.
27People v. Washington (1965) 62 Cal.2d 777, 783. ("Accordingly, for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design. ( Commonwealth v. Campbell, 89 Mass. 541 [83 Am. Dec. 705]; Butler v. People, 125 Ill. 641 [18 N.E. 338, 8 Am.St.Rep. 423]; Commonwealth v. Moore, 121 Ky. 97 [88 S.W. 1085, 2 L.R.A.N.S. 719, 123 Am. St. Rep. 189, 11 Ann. Cas. 1024]; State v. Oxendine, 187 N.C. 658 [122 S.E. 568]; see also People v. Ferlin, 203 Cal. 587, 597 [265 P. 230].)")
28See same at 781. ("When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the killing. [California Penal Code] Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within [California Penal Code] section 189 would expand the meaning of the words "murder ... which is committed in the perpetration ... [of] robbery ..." beyond common understanding. The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (See Holmes, The Common Law, pp. 58-59; Model Penal Code (Tent. Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-38; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 35-36 (1949-1953).) This purpose is not served by punishing them for killings committed by their victims.")
29People v. Caldwell (1984) 36 Cal.3d 210, 214. ("Convicted of robbery and murder,FN1 defendants Ernest Edward Caldwell and Warren Edwin Washington appeal, claiming that they should not have been found guilty of the murder of a cofelon killed by police in the course of a shootout. Defendants claim that the cofelon's death proximately resulted from his own provocative conduct, for which, under our decisions, they cannot be held vicariously liable. More broadly, they wish us to reconsider the now settled rule that, though the felony-murder rule does not extend to killings by victims or police, such killings which proximately result from provocative conduct by one of the felons which exhibits a conscious disregard for life and a high probability of resulting in death constitute murder without the necessity of any ‘imputation‘ of malice. The record discloses substantial evidence of malicious conduct by the defendants themselves, and we decline their invitation to reconsider settled decisional law.")
30People v. Cabaltero (1939) 31 Cal.App.2d 52, 61. ("As declared in People v. Boss, supra: "The law is also well settled that where two or more persons enter into a conspiracy to commit a robbery or burglary and one of the conspirators commits a murder in the perpetration of the crime, all of said conspirators are equally guilty with said coconspirator of murder of the first degree, and it is no defense that those who did not actually participate in the killing did not intend that life should be taken in the perpetration of the robbery, or had forbidden their associate to kill, or regretted that it had been done.")
31See same at 58. ("It has long since been declared to be the law of the state, however, that any killing by one engaged in the commission of any of the felonies enumerated in said section 189 falls within the scope of that section, and constitutes murder of the first degree. As stated in California Jurisprudence (vol. 13, p. 601), "The moment one engages in the commission of one of the specified felonies, the law fastens upon him the intent which makes any killing in the perpetration of such offense ... murder of the first degree." All of the cases, and there are many of them, declare to the same effect; and while none of them involved the killing of one conspirator by another, the unqualified language employed in the decisions therein in dealing with the question of the scope of said section 189, makes it clear that said section was designed to include and that its provisions apply to any killing by one engaged in the commission of any of the specified felonies, irrespective of the status of the person killed and regardless of whether the killing is accidental or intentional.")
32People v. Pulido (1997) 15 Cal.4th 713, 716. ("In this case, we address a question regarding the scope of complicity in robbery murder. 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, is the second person guilty of first degree murder under section 189? We conclude the answer is no. Although the second person is an accomplice to robbery ( People v. Cooper (1991) 53 Cal.3d 1158, 1165, 282 Cal.Rptr. 450, 811 P.2d 742), 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 ( People v. Martin, supra, 12 Cal.2d at p. 472, 85 P.2d 880); the killer, in other words, was not acting, at the time of the killing, in furtherance of a "common" design to rob ( People v. Washington, supra, 62 Cal.2d at p. 782, 44 Cal.Rptr. 442, 402 P.2d 130).")
33See same, as these facts were taken from the above case.
34Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's laws against child abuse, child neglect, or child endangerment law. Their Nevada law offices are located in Reno and Las Vegas.
