Ct.App. 3 C049069 San Joaquin County Super. Ct. No. SF090168C. Judge Bernard J. Garber.
The opinion of the court was delivered by: Chin, J.
In this murder case, the trial court instructed the jury on second degree felony murder with shooting at an occupied vehicle under Penal Code section 246 the underlying felony.*fn1 We granted review to consider various issues concerning the validity and scope of the second degree felony-murder rule.
We first discuss the rule's constitutional basis. Although the rule has long been part of our law, some members of this court have questioned its constitutional validity. We conclude that the rule is based on statute, specifically section 188's definition of implied malice, and hence is constitutionally valid.
Next we reconsider the contours of the so-called merger doctrine this court adopted in People v. Ireland (1969) 70 Cal.2d 522 (Ireland). After reviewing recent developments, primarily some of our own decisions, we conclude the current state of the law in this regard is untenable. We will overrule some of our decisions and hold that all assaultive-type crimes, such as a violation of section 246, merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction. Accordingly, the trial court erred in instructing on felony murder in this case. We also conclude, however, that this error, alone, was not prejudicial.
We reverse the judgment of the Court of Appeal, which had found the same error prejudicial. However, the Court of Appeal also found a second error, a finding not before us on review. We remand the matter to the Court of Appeal to decide whether the two errors, in combination, were prejudicial.
I. FACTS AND PROCEDURAL HISTORY
We take our facts primarily from the Court of Appeal's opinion.
Judy Onesavanh and Sophal Ouch were planning a party for their son's birthday. Around 9:00 p.m. on September 13, 2003, they and a friend, Bounthavy Onethavong, were driving to the store in Stockton in a blue Mitsubishi that Onesavanh's father owned. Onesavanh's brother, George, also drives the car. The police consider George to be highly ranked in the Asian Boys street gang (Asian Boys).
That evening Ouch was driving, with Onesavanh in the front passenger seat and Onethavong behind Ouch. While they were stopped in the left turn lane at a traffic light, a blue Honda with tinted windows pulled up beside them. When the light changed, gunfire erupted from the Honda, hitting all three occupants of the Mitsubishi. Onethavong was killed, having received two bullet wounds in the head. Onesavanh was hit in the back and seriously wounded. Ouch was shot in the cheek and suffered a fractured jaw.
Ouch and Onesavanh identified the Honda's driver as "T-Bird," known to the police to be Rathana Chan, a member of the Tiny Rascals Gangsters (Tiny Rascals), a criminal street gang. The Tiny Rascals do not get along with the Asian Boys. Chan was never found. The forensic evidence showed that three different guns were used in the shooting, a .22, a .38, and a .44, and at least six bullets were fired. Both the .38 and the .44 struck Onethavong; both shots were lethal. Only the .44 was recovered. It was found at the residence of Sokha and Mao Bun, brothers believed to be members of a gang.
Two months after the shooting, the police stopped a van while investigating another suspected gang shooting. Defendant was a passenger in the van. He was arrested and subsequently made two statements regarding the shooting in this case. He admitted he was in the backseat of the Honda at the time; T-Bird was the driver and there were two other passengers. Later, he also admitted he fired a .38-caliber firearm. He said he did not point the gun at anyone; he just wanted to scare them.
Defendant, who was 16 years old at the time of the shooting, was tried as an adult for his role in the shooting. He was charged with murder, with driveby and gang special circumstances, and with two counts of attempted murder, discharging a firearm from a vehicle, and shooting into an occupied vehicle, all with gang and firearm-use allegations, and with street terrorism. At trial, the prosecution presented evidence that defendant was a member of the Tiny Rascals, and that the shooting was for the benefit of a gang. Defendant testified, denying being a member of the Tiny Rascals or being involved in the shooting.
The prosecution sought a first degree murder conviction. The court also instructed the jury on second degree felony murder based on shooting at an occupied motor vehicle (§ 246) either directly or as an aider and abettor. The jury found defendant guilty of second degree murder. It found the personal-firearm-use allegation not true, but found that a principal intentionally used a firearm and the shooting was committed for the benefit of a criminal street gang. The jury acquitted defendant of both counts of attempted murder, shooting from a motor vehicle, and shooting at an occupied motor vehicle. It convicted defendant of being an active participant in a criminal street gang.
The Court of Appeal, in an opinion authored by Justice Morrison, reversed the murder conviction and otherwise affirmed the judgment. It found two errors in the case. It held the trial court had properly admitted defendant's first statement that he had been in the car but that the court should have excluded his subsequent statement that he had fired a gun. It concluded that the latter statement was procured by a false promise of leniency. It found this error harmless beyond a reasonable doubt "as a pure evidentiary matter." But, partly due to this error, the Court of Appeal also held the trial court erred in instructing the jury on second degree felony murder. It found this error was prejudicial and reversed the murder conviction. It explained: "Second degree felony murder, the only express theory of second degree murder offered to the jury, was based on the underlying felony of shooting into an occupied vehicle. The merger doctrine prevents using an assaultive-type crime as the basis for felony murder unless the underlying crime is committed with an intent collateral to committing an injury that would cause death. Without the evidence of defendant's statements about the shooting, there was no evidence from which a collateral intent or purpose could be found. Accordingly, it was error to instruct on second degree felony murder and the murder conviction must be reversed."
Justice Nicholson dissented from the reversal of the murder conviction. Relying on People v. Hansen (1994) 9 Cal.4th 300 (Hansen), he argued that the underlying felony did not merge with the homicide for purposes of the second degree felony-murder rule and, accordingly, the trial court had properly instructed the jury on second degree felony murder.
We granted review. Later, we issued an order limiting review to the issues concerning whether the trial court prejudicially erred in instructing the jury on second degree felony murder.
A. The Constitutionality of the Second Degree Felony-murder Rule
Defendant contends California's second degree felony-murder rule is unconstitutional on separation of power grounds as a judicially created doctrine with no statutory basis. To explain the issue, we first describe how the doctrine fits in with the law of murder. Then we discuss defendant's contention. We will ultimately conclude that the doctrine is valid as an interpretation of broad statutory language.
Section 187, subdivision (a), defines murder as "the unlawful killing of a human being, or a fetus, with malice aforethought." Except for the phrase "or a fetus," which was added in 1970 in response to this court's decision in Keeler v. Superior Court (1970) 2 Cal.3d 619 (see People v. Davis (1994) 7 Cal.4th 797, 803), this definition has been unchanged since it was first enacted as part of the Penal Code of 1872. Murder is divided into first and second degree murder. (§ 189.) "Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. (§§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.)" (Hansen, supra, 9 Cal.4th at p. 307.)
Critical for our purposes is that the crime of murder, as defined in section 187, includes, as an element, malice. Section 188 defines malice. It may be either express or implied. It is express "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) It is implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (Ibid.) This definition of implied malice is quite vague. Trial courts do not instruct the jury in the statutory language of an abandoned and malignant heart. Doing so would provide the jury with little guidance. "The statutory definition of implied malice has never proved of much assistance in defining the concept in concrete terms." (People v. Dellinger (1989) 49 Cal.3d 1212, 1217.) Accordingly, the statutory definition permits, even requires, judicial interpretation. We have interpreted implied malice as having "both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' (People v. Watson (1981) 30 Cal.3d 290, 300.) The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.' (Ibid., internal quotation marks omitted.)" (People v. Patterson (1989) 49 Cal.3d 615, 626 (lead opn. of Kennard, J.) (Patterson).)*fn2
A defendant may also be found guilty of murder under the felony-murder rule. The felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state. The rule has two applications: first degree felony murder and second degree felony murder. We have said that first degree felony murder is a "creation of statute" (i.e., § 189) but, because no statute specifically describes it, that second degree felony murder is a "common law doctrine." (People v. Robertson (2004) 34 Cal.4th 156, 166 (Robertson).) First degree felony murder is a killing during the course of a felony specified in section 189, such as rape, burglary, or robbery. Second degree felony murder is "an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189 . . . ." (Robertson, supra, 34 Cal.4th at p. 164.)
In Patterson, Justice Kennard explained the reasoning behind and the justification for the second degree felony-murder rule: "The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component [of conscious-disregard-for-life malice]. The justification therefor is that, when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved. The physical requirement, however, remains the same; by committing a felony inherently dangerous to life, the defendant has committed 'an act, the natural consequences of which are dangerous to life' ([People v.] Watson, supra, 30 Cal.3d at p. 300), thus satisfying the physical component of implied malice." (Patterson, supra, 49 Cal.3d at p. 626.)
The second degree felony-murder rule is venerable. It "has been a part of California's criminal law for many decades. (See People v. Wright (1914) 167 Cal. 1, 5; Pike, What Is Second Degree Murder in California (1936) 9 So.Cal.L.Rev. 112, 118-119.)" (Patterson, supra, 49 Cal.3d at p. 621; see also People v. Doyell (1874) 48 Cal. 85, 94.) Because of this, we declined to reconsider the rule in Patterson. (Patterson, supra, at p. 621.) Even earlier, in 1966, we rejected the argument that we should abandon the doctrine, explaining that "the concept lies imbedded in our law." (People v. Phillips (1966) 64 Cal.2d 574, 582; see also People v. Mattison (1971) 4 Cal.3d 177, 184 (Mattison) [describing the rule as "well-settled"].)
But some former and current members of this court have questioned the rule's validity because no statute specifically addresses it. Chief Justice Bird argued for its abolition in her concurring opinion in People v. Burroughs (1984) 35 Cal.3d 824, 836-854. Justice Brown did so in dissent in Robertson, supra, 34 Cal.4th at pages 186-192, and again while concurring and dissenting in People v. Howard (2005) 34 Cal.4th 1129, 1140-1141. Justices Werdegar and Moreno have viewed the rule as ripe for reconsideration in an appropriate case. (Robertson, supra, at pp. 174-177 (conc. opn. of Moreno, J.), 185-186 (dis. opn. of Werdegar, J.).) In Patterson, Justice Panelli questioned the rule's constitutional validity. As he pointed out, "There are, or at least should be, no non-statutory crimes in this state. (In re Brown (1973) 9 Cal.3d 612, 624; see Pen. Code, § 6.)" (Patterson, supra, 49 Cal.3d at p. 641 (conc. & dis. opn. of Panelli, J.).) He was concerned that the second degree felony-murder rule is solely a judicial creation not derived from statute and was thus "not quite convinced" that it "stands on solid constitutional ground." (Ibid.)
In line with these concerns, defendant argues that the second degree felony-murder rule is invalid on separation of powers grounds. As he points out, we have repeatedly said that " 'the power to define crimes and fix penalties is vested exclusively in the legislative branch.' (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631; [citations].)" (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 516.) Defendant asks rhetorically, "How, then, in light of the statutory abrogation of common law crimes and the constitutional principle of separation of powers, does second degree felony murder continue to exist when this court has repeatedly acknowledged that the crime is a judicial creation?"
This court has never directly addressed these concerns and this argument, or explained the statutory basis of the second degree felony-murder rule. We do so now. We agree with Justice Panelli that there are no non-statutory crimes in this state. Some statutory or regulatory provision must describe conduct as criminal in order for the courts to treat that conduct as criminal. (§ 6.)*fn3 But, as we explain, the second degree felony-murder rule, although derived from the common law, is based on statute; it is simply another interpretation of section 188's abandoned and malignant heart language.
Many provisions of the Penal Code were enacted using common law terms that must be interpreted in light of the common law. For example, section 484 defines theft as "feloniously" taking the property of another. The term "feloniously" - which has little meaning by itself - incorporates the common law requirement that the perpetrator must intend to permanently deprive the owner of possession of the property. Accordingly, we have looked to the common law to determine the exact contours of that requirement. (People v. Avery (2002) 27 Cal.4th 49, 55; People v. Davis (1998) 19 Cal.4th 301, 304, fn. 1.) Thus, the intent-to-permanently-deprive requirement, although non-statutory in the limited sense that no California statute uses those words, is based on statute. The murder statutes are similarly derived from the common law. (Keeler v. Superior Court, supra, 2 Cal.3d 619 [looking to the common law to determine the exact meaning of "human being" under section 187].) "It will be presumed . . . that in enacting a statute the Legislature was familiar with the relevant rules of the common law, and, when it couches its enactments in common law language, that its intent was to continue those rules in statutory form." (Keeler v. Superior Court, supra, at p. 625.)
Even conscious-disregard-for-life malice is non-statutory in the limited sense that no California statute specifically uses those words. But that form of implied malice is firmly based on statute; it is an interpretation of section 188's abandoned and malignant heart language. Similarly, the second degree felony-murder rule is non-statutory in the sense that no statute specifically spells it out, but it is also statutory as another interpretation of the same "abandoned and malignant heart" language. We have said that the "felony-murder rule eliminates the need for proof of malice in connection with a charge of murder, thereby rendering irrelevant the presence or absence of actual malice, both with regard to first degree felony murder and second degree felony murder." (Robertson, supra, 34 Cal.4th at p. 165.) But analytically, this is not precisely correct. The felony-murder rule renders irrelevant conscious-disregard-for-life malice, but it does not render malice itself irrelevant. Instead, the felony-murder rule "acts as a substitute" for conscious-disregard-for-life malice. (Patterson, supra, 49 Cal.3d at p. 626.) It simply describes a different form of malice under section 188. "The felony-murder rule imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to life." (Hansen, supra, 9 Cal.4th at p. 308.)
A historical review confirms this view. California's first penal law was the Crimes and Punishments Act of 1850 (Act of 1850). (Stats. 1850, ch. 99, p. 229.) Section 19 of that act defined murder as "the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned." (Stats. 1850, ch. 99, § 19, p. 231.) Sections 20 and 21 of the Act of 1850 defined express and implied malice, respectively. Section 21 stated, "Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." (Stats. 1850, ch. 99, § 21, p. 231.) It also set the punishment for murder as death. At that time, murder was not divided into degrees. The division of murder into degrees "occurred in 1856, when the Legislature amended section 21 of the Act of 1850 to divide the crime of murder into two degrees: first degree murder was defined as that committed by certain listed means or in the perpetration of certain listed felonies, while all other murders were of the second degree." (People v. Dillon (1983) 34 Cal.3d 441, 466 (Dillon).)
Sections 22-25 of the Act of 1850 concern voluntary and involuntary manslaughter. Section 25 provided, in its entirety, "Involuntary manslaughter shall consist in the killing of a human being, without any intent so to do; in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence in an unlawful manner; Provided, that where such involuntary killing shall happen in the commission of an unlawful act, which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder." (Stats. 1850, ch. 99, § 25, p. 231, italics of "Provided" in original, all other italics added.)
In 1872, the Legislature adopted the current Penal Code. Section 187 defined murder essentially the same as did the Act of 1850. (Keeler v. Superior Court, supra, 2 Cal.3d at p. 624.) As can readily be seen, section 188 also defined implied malice essentially the same as did the Act of 1850.
But the 1872 Penal Code did recast the definition of involuntary manslaughter. The new section 192 defined voluntary and involuntary manslaughter, as it still does today. (In the interim, vehicular manslaughter has been added as another form of manslaughter.) Subdivision 2 of that section defined and, now labeled subdivision (b), still defines, involuntary manslaughter as an unlawful killing without malice "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." (§ 192, subd. (b), italics added.) The proviso portion of section 25 of the Act of 1850 was deleted and essentially replaced with the italicized language "not amounting to [a] felony."
In Dillon, supra, 34 Cal.3d 441, this court considered issues concerning the first degree felony-murder rule. As part of its discussion, Dillon stated that the proviso portion of section 25 of the Act of 1850 "codified the common law felony-murder rule in this state," and that "the Legislature's decision not to re-enact the felony-murder provision of section 25 in the 1872 codification implied an intent to abrogate the common law felony-murder rule that the section had embodied since 1850." (Dillon, supra, at pp. 465, 467.) If these statements were correct, it would be difficult to conclude that second degree felony murder is based on statute today. But this language in Dillon was dicta because Dillon involved the first degree, not second degree, felony-murder rule. Now that the point is critical, we examine it further and, viewing the relevant 1850 and 1872 statutes in context, conclude that Dillon was not correct in this regard.
A codification of the felony-murder rule would logically be placed in the statutes defining murder, not in a statute defining involuntary manslaughter such as section 25 of the Act of 1850. Moreover, any reasonable felony-murder rule would apply to any killing during the course of a felony, not just an "involuntary killing" as stated in that same section 25. As Dillon noted, "It would have been absurd, of course, to punish as murder those killings [i.e., involuntary killings] but not 'voluntary' killings during a felony . . . ." (Dillon, supra, 34 Cal.3d at p. 465, fn. 12.) Dillon ascribed section 25's apparent limitation of the felony-murder rule to involuntary killings to a "quirk of draftsmanship." (Dillon, supra, at p. 465, fn. 12.) If that section's proviso is viewed as a codification of the common law of felony murder, the draftsmanship would, indeed, be quirky. It would be doubly quirky: It would be unusual to codify a common law rule concerning murder in a statute defining involuntary manslaughter, and it would be quirky to include in the felony-murder rule only involuntary killings to the apparent exclusion of voluntary killings. But viewed instead as what it no doubt was - a proviso merely limiting the scope of involuntary manslaughter - the draftsmanship makes sense.
Without the proviso, section 25 of the Act of 1850 would have meant, or at least would have been susceptible to the interpretation, that any killing "in the commission of an unlawful act" - i.e., any unlawful act, whether misdemeanor or felony - is involuntary manslaughter. The proviso simply makes clear that involuntary manslaughter does not include killings in the course of a felony, which remain murder. As this court explained in a case in which the crime was committed before, but the opinion filed after, adoption of the 1872 Penal Code, "Whenever one, in doing an act with the design of committing a felony, takes the life of another, even accidentally, this is murder." (People v. Doyell, supra, 48 Cal. at p. 94 [citing section 25 of the Act of 1850].) The new section 192 merely simplified the definition of involuntary manslaughter by replacing the earlier proviso with the new language, "not amounting to felony." In this way, the Legislature avoided the awkwardness of having a broad definition of involuntary manslaughter followed by a proviso limiting that definition. So viewed, the language of section 25 of the Act of 1850 and 1872's new section 192 all make sense; no need exists to ascribe any language to quirky draftsmanship or to view section 192's simplified definition of involuntary manslaughter as abrogating a common law rule concerning murder.
The notes of the California Code Commissioners accompanying the 1872 adoption of the Penal Code, which are entitled to substantial weight (Keeler v. Superior Court, supra, 2 Cal.3d at p. 630), provide no hint of an intent to abrogate the felony-murder rule. The note accompanying section 187, although not discussing this precise point, shows that the statutory term "malice aforethought" incorporated the term's common law meaning. (Cal. Code commrs. note foll. Ann. Pen. Code, § 187 (1st ed. 1872, Haymond & Burch, commrs.-annotators), pp. 80-81 (1872 Code commissioners note) [citing various common law sources in discussing the meaning of malice aforethought].) Similarly, nothing in the adoption of Penal Code sections 188 and 189 suggests an intent to change the then-existing law of murder, including, as relevant here, the definition of implied malice and its common law antecedents. The Code commissioners note accompanying the 1872 adoption of section 192 states that "[t]his section embodies the material portions of Sections 22, 23, 24, and 25 of the Crimes and Punishment Act of 1850." (1872 Code commrs. note, p. 85, italics added.) This latter note strongly indicates that the language change from section 25 of the Act of 1850 to section 192 was not intended to change the law of manslaughter, much less to change the law of murder by abrogating the common law felony-murder rule. Any statute that "embodies the material portions" of predecessor statutes would not change the law in such a substantial manner.
We are unaware of any California case even remotely contemporaneous with the adoption of the 1872 Penal Code (i.e., any case before Dillon, supra, 34 Cal.3d 441) suggesting that the language change from section 25 of the Act of 1852 to section 192 abrogated the felony-murder rule or otherwise changed the law of murder. Indeed, cases postdating People v. Doyell, supra, 48 Cal. 85, and the adoption of the 1872 Penal Code, but still ancient from today's perspective, cited Doyell in applying the second degree felony-murder rule without any hint that Doyell was obsolete because it had cited section 25 of the Act of 1850. (See People v. Olson (1889) 80 Cal. 122, 126-127; People v. Ferugia (1928) 95 Cal.App. 711, 718; People v. Hubbard (1923) 64 Cal.App. 27, 33.)
For these reasons, we conclude that the Legislature's replacement of the proviso language of section 25 of the Act of 1850 with the shorthand language "not amounting to felony" in section 192 did not imply an abrogation of the common law felony-murder rule. The "abandoned and malignant heart" language of both the original 1850 law and today's section 188 contains within it the common law second degree felony-murder rule. The willingness to commit a felony inherently dangerous to life is a circumstance showing an abandoned and malignant heart. The second degree felony-murder rule is based on statute and, accordingly, stands on firm constitutional ground.*fn4
B. The Merger Rule and Second Degree Felony Murder
Although today we reaffirm the constitutional validity of the long-standing second degree felony-murder rule, we also recognize that the rule has often been criticized and, indeed, described as disfavored. (E.g., Patterson, supra, 49 Cal.3d at p. 621.) We have repeatedly stated, as recently as 2005, that the rule " ' "deserves no extension beyond its required application." ' " (People v. Howard, supra,34 Cal.4th at p. 1135.) For these reasons, although the second degree felony-murder rule originally applied to all felonies (People v. Doyell, supra, 48 Cal. at pp. 94-95; Pike, What Is Second Degree Murder in California, supra, 9 So.Cal.L.Rev. at pp. 118-119), this court has subsequently restricted its scope in at least two respects to ameliorate its perceived harshness.
First, "[i]n People v. Ford (1964) 60 Cal.2d 772, 795, the court restricted the felonies that could support a conviction of second degree murder, based upon a felony-murder theory, to those felonies that are 'inherently dangerous to human life.' " (Hansen, supra, 9 Cal.4th at p. 308.) Whether a felony is inherently dangerous is determined from the elements of the felony in the abstract, not the particular facts. (Patterson, supra, 49 Cal.3d at p. 621.) This restriction is not at issue here. Section 246 makes it a felony to "maliciously and willfully discharge a firearm at an . . . occupied motor vehicle . . . ."*fn5 In Hansen, supra, at pages 309-311, we held that shooting at an "inhabited dwelling house" under section 246 is inherently dangerous even though ...