Brief Bank # B-525b
MICHAEL E. TIGAR
ATTORNEY AT LAW
727 E. 26TH STREET
AUSTIN, TEXA.S 78703
ADMITTED IN D.C. DIRECT DIAL (512) 471‑6319
NOT ADMITTED IN TEXAS SWITCHBOARD (512) 471‑5151
TELECOPIER (512) 478‑3202
November 6, 1992
Ron D. Barrow, Clerk of the Court
Court of Appeal
First Appellate District, Division Three
Marathon Plaza—South Tower
303 Second Street, Suite 600
San Francisco, CA 94107
Re: People v. Mouton, 92 C.D.O.S. 8520
Dear Mr. Barrow:
We, the undersigned law professors, have a long and continuing interest in California criminal law. We ask that the Court consider this letter a brief amicus curiae in support of a grant of rehearing in the above-cited matter. We believe the opinion issued by this Court on October 14, 1992 is ill-advised insofar as it holds: (a) that the California doctrine holding an aider and abettor liable not only for the “target offense” he commits, but also for the reasonable and probable consequences of that target crime, can render one guilty of no more than aiding and abetting a misdemeanor liable for a murder committed by another; and (b) that this particular form of misdemeanor-murder liability can be imposed on a defendant who is not even guilty of a misdemeanor, but only of intending the commission of one.
The Court acknowledges that no California court previously has reached the result announced in Mouton, but finds itself unable to discover “the authority [or] the rationale” for refraining from its novel extension of murder liability. The reasons for such restraint, however, are many.
The first and most obvious is the fact that the Legislature has defined as a necessary element of murder liability the mental state of malice aforethought. “Pursuant to our statutory scheme, murder is defined as the unlawful killing of a human being with malice aforethought.” People v. Babbitt (1988) 45 Cal.3d 660, 693. One who does no more than aid and abet a misdemeanor does not possess malice aforethought. On the other hand, the Legislature has spoken on the liability of one whose commission of a misdemeanor results in a homicide: they are guilty of involuntary manslaughter. Pen. Code § 192. [Footnote 1] Surely that statutory scheme provides both “authority” and a “rationale” for not finding murder liability for the first time in circumstances where no other California court has located it in the last century and a half.
It is true that there is a doctrine extant in California law permitting conviction for murder of one who lacks malice: i.e., the second degree felony-murder doctrine. [Footnote 2] Rather than supporting this Court’s theory of misdemeanor-murder, however, the case law discussing second-degree felony murder plainly indicates why murder liability cannot be predicated on commission of a misdemeanor.
In its last extensive discussion of the rule, the California Supreme Court stated:
The second degree felony murder rule eliminates the need for the prosecution to establish the mental component [of malice aforethought]. The justification therefore is that, when society has declared 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. People v. Patterson (1989) 49 Cal. 3d 615, 626. (Emphasis added).
Patterson thus makes obvious that there is no justification for attaching murder liability to an offense that society has refused to declare felonious, even if that conduct is inherently dangerous. The Patterson majority opinion thus also supplies both authority and a rationale in opposition to this Court’s ruling.
A third such rationale is found in Justice Panelli’s opinion in Patterson: a non‑malice doctrine
of murder is of dubious constitutionality. Justice Panelli wrote:
But we must bear in mind that both the definition [of second-degree felony murder] and the crime, itself, are our own creations.
Although courts are often called upon to make policy choices—and this court has not shirked its responsibility to do so—our mandate to make policy in this context is not particularly strong. There are, or at least should be, no nonstatutory crimes in this state. (In re Brown (1973) 9 Cal.3d 612, 624 [108 Cal.Rptr. 465, 510 P.2d 1017]; see Pen. Code § 6.) The second degree felony-murder rule, however, either creates a nonstatutory crime or increases the punishment for statutory crimes beyond that established by the Legislature. We derive such authority neither from the Constitution (see Cal. Const. art. III, § 3) nor from the Penal Code (see Pen. Code, §§ 6, 12, 13, 15). 49 Cal.3d at 641‑642.
The second degree felony murder rule has not succumbed to Justice Panelli’s attack only because, in the view of the Patterson majority, the rule “has been part of California’s criminal law for many decades,” and the Legislature has never acted to abolish it. 49 Cal.3d at 621. This Court’s rule, however, has no pedigree to recommend it. Justice Panelli’s reasoning is yet another powerful factor to be weighed against the holding of Mouton.
A fourth rationale, well supported by precedent, for not extending murder liability to one who does no more than commit a misdemeanor is the questionable morality of such a principle.
The felony murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. People v. Washington (1965) 62 Cal.2d 777, 783.
That being so, it is settled that in California “the felony murder doctrine [is] a highly artificial concept of strict liability…to be construed as narrowly as possibly…” People v. Poddar (1974) 10 Cal.3d 750, 756.
Since the felony murder doctrine is offensive because the “net effect [is] to preclude consideration by the jury of the issue of malice as an element of murder” (10 Cal. 3d at 757), any doctrine of criminal liability which permits a conviction of murder without a finding of malice aforethought is disfavored in California. Needless to say, a rule which predicates murder liability on an act of a defendant no more egregious than the aiding and abetting of a misdemeanor severs the link between moral culpability and criminal liability far beyond the much criticized breach caused by the felony-murder rule. Surely that is another good reason for this Court to refrain from a course taken by no other California court.
There are two additional and related reasons why the Court’s novel extension of murder liability is unwarranted. These are the doctrine of lenity and the requirement of clear notice that certain conduct carries a specific criminal sanction. The rule of lenity requires that any ambiguity as to the scope of a criminal statute be “resolved in favor of lenity.” Rewis v. United States (1971) 401 U.S. 808, 812. See also In re Tartar (1959) 52 Cal.3d 250, 257 (all reasonable doubts as to scope of criminal statute must be resolved in favor of the defendant).
“Application of the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability.” Liparota v. United States (1985) 471 U.S. 419, 427. The “fair warning” required of criminal statutes is, of course, constitutionally mandated. “The first essential of due process is fair warning of the act which is made punishable as a crime.” Keeler v. Superior Court (1970) 2 Cal.3d 619, 633.
Surely, the fact that no court previously has found that California’s Penal Code can render a misdemeanant liable for murder in itself creates a doubt that the relevant criminal statutes cast their net so broadly. The lack of such precedent belies the conclusion that Mouton was given fair warning that his conduct in aiding and abetting a misdemeanor potentially supported a murder conviction. For these and all the reasons stated above, the Court’s opinion creating a form of misdemeanor-murder liability should be withdrawn.
The Court’s holding that “a defendant may be liable for murder where he intended to facilitate or encourage only a misdemeanor,” although unprecedented and wrong, may not be the most disturbing aspect of its opinion, for equally troubling is its ruling that “operation of the natural and probable consequences rule [does not] require [ ] defendant to be guilty of the target offense.” 92 C.D.O.S. 8523 (emphasis in original).
If such a defendant is not guilty of the target misdemeanor, of what offense is he guilty? He cannot be found guilty of the murder on an aiding and abetting theory, because that requires an intent to facilitate the crime of murder (People v. Beeman (1984) 35 Cal.3d 547), an intent he concededly does not have. [Footnote 3] Under the Court’s analysis, a defendant can be found responsible for the crime of murder committed by another although the defendant has committed no crime at all. Such a holding is, to our knowledge, unsupported by any American precedent and flies in the face of the bedrock principles that guilt is personal and that a defendant’s guilt of the elements of an offense must be proven beyond a reasonable doubt. In In re Winship (1970) 397 U.S. 358, 364. The Court’s opinion on this point also should be reconsidered and revised.
In view of the foregoing, this Court should grant appellant’s petition for rehearing, and after further consideration, reverse his conviction.
Michael E. Tigar
Joseph D. Jamail Centennial
Chair in Law
University of Texas
Dean Gerald Uelmen Louis B. Schwartz
University of Santa Clara Professor of Law
Law School University of California
Hastings College of Law
Philip Johnson Barbara Allen Babcock
Professor of Law McFarland Professor of
University of California Law
Boalt Hall Stanford Law School
Robert K. Calhoun, Jr. Marc Kellman
Professor of Law Professor of Law
Golden Gate University Stanford Law School
School of Law
Professor of Law
Stanford Law School
SANTA CLARA UNIVERSITY
SCHOOL OF LAW
November 10, 1992
Ron D. Barrow, Clerk of Court
Court of Appeal
First Appellate District
Marathon Plaza—South Tower
303 Second Street, Suite 600
San Francisco, CA 94107
Re: People v. Mouton, No. A052632 (92 C.D.O.S. 8520)
We, the undersigned, have read the letter amicus briefs in support of a petition for rehearing, submitted by an ad hoc group of law professors and the California Attorneys for Criminal Justice (CACJ). As professors of law, we subscribe to the comments contained in the law professors’ amicus, and wish to add our names to those signing that brief. As African-Americans profoundly concerned about the quality of criminal justice in this country, we also share the view expressed in the CACJ amicus that the Court’s decision potentially will permit additional discrimination against minorities in the application of California’s penal statutes.
For these reasons, we join in the request of amici that rehearing be granted in this case.
Professor Kim Taylor Professor Peggy Russell
Stanford University Santa Clara University
School of Law School of Law
F: “When an untended killing results from an unlawful act not amounting to a felony, the manslaughter statute comes into play.” People v. Wright (1976) 60 Cal.App.3d 6, 10. The fact that the misdemeanor which resulted in a homicide was inherently dangerous to human life cannot justify a murder conviction because: “The prime distinction between felony murder and non-negligent involuntary manslaughter is this: the former results from a felony inherently dangerous to human life, the latter from an unlawful act other than a felony (e.g., a misdemeanor) which is inherently dangerous to human life.” Id. at 11.
The doctrine of first-degree felony murder rule does not constitute an exception to the requirement of malice found in section 187, because first degree felony murder is a crime defined by a separate statutory provision that does not have murder as an element.
It is for this reason that California law presently does require that the defendant be found guilty of the target offense before the reasonable and probable consequences doctrine can be involved. People v. Rogers (1985) 172 Cal.App.3d 502, 515 n. 18; CALJIC 3.02.