PEOPLE OF THE STATE OF ) No. A052632
JOHN DOE, )
DENNIS P. RIORDAN, ESQ.
MICHAEL A. LEVY, ESQ.
find an element of the crime.
Cabana V. Bullock (1986) 474 U.S. 376, 384‑385. See also People v. Hedgecock (1990) 51 Cal.3d 395; People v. Figueroa (1986) 41 Cal.3d 714. Doe’s murder conviction must be reversed.
II. EVEN HAD DOE BEEN GUILTY OF AIDING AND ABETTING AN ASSAULT WITH A DEADLY WEAPON OR A MISDEMEANOR GUN CHARGE, THOSE OFFENSES COULD NOT SERVE AS THE PREDICATE FOR A MURDER CONVICTION ON A VICARIOUS LIABILITY THEORY
A. A Defendant Cannot Be Convicted Of Murder Without A Finding Of Malice Merely Because He Aids An Assault With A Deadly Weapon.
Absent a valid theory of liability such as felony murder, the crime of murder requires the mental state element of malice aforethought, be it express or implied. CALJIC 8.10, 8.11. The prosecutor never argued, nor would the evidence have permitted her to argue, that John Doe possessed that mental state element. Rather she argued that, even lacking that mental state, Doe could be guilty of murder because he aided other crimes—assault with, or possession and brandishing of, a firearm—of which Beatrice J.’s death was a natural and probable consequence. In short, Doe was convicted of second degree murder without a finding of malice aforethought because of his alleged participation in a felony assault or misdemeanor gun charge.
The prosecution’s theory of murder via assault has been invalid since the California Supreme Court accepted the merger doctrine more than twenty years ago. That doctrine can be summarized by a lengthy quote from People v. Wilson (1969) Cal.3d 431, 437‑438:
Properly understood, the instruction permitted the jury to find defendant guilty of second degree murder if they found only that the homicide was committed in the perpetration of the crime of assault with a deadly weapon. (See People v. Phillips (1966) 64 Cal.2d 574, 584 and fn. 9 [51 Cal.Rptr. 225, 414 P.2d 353].) The instruction is intended to relieve the jury of the necessity to make a specific finding of malice aforethought if a killing is caused by a defendant in the course of a felonious assault or other dangerous felony.
In our recent decision of People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 430 P.2d 580], we held an identical instruction to be improper on the ground that it went beyond any “rational function” that the felony‑murder rule was intended to serve. “To allow such use of the felony‑murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault ‑ a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony‑murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.” (Fn. omitted.) (Id. at 750).
The instruction given in this case allowed the jury to return a verdict of second degree murder if they found that Washington was killed in the course of defendant’s perpetration of an assault with a deadly weapon upon Washington. Thus, the felony-murder instruction was based on an underlying felony which was a necessary ingredient of the homicide, and converted the homicide automatically into second degree murder on a finding of the underlying felony. This “bootstrapping” was erroneous in Ireland and is erroneous here.
The error was clearly prejudicial in that it permitted a conviction of second degree murder without a finding of the essential element of malice aforethought.” (emphasis added).
People v. Wesley (1970) 10 Cal.App.3d 902, 906 involved facts quite close to those in this action. Defendants Westbrook and Wesley fired shots at a building; an innocent party was killed by an errant shot. The defendants were convicted on the basis of an argument and an instruction that a homicide is a second degree murder
[w]hen the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life, such a discharging a firearm at an inhabited dwelling.
10 Cal.App.3d at 906.
The Court reversed, holding an instruction that a killing directly resulting from an inherently dangerous felony is a second degree murder erroneously removed from the jury the necessity of finding malice aforethought.
It is undisputed that the homicide and the underlying felony referred to in the court’s instruction were committed by the same act. The discharge of the firearms by the defendants was the means by which the homicide was committed and was in fact an “integral part” and a “necessary element” of the homicide. Under the rule of Ireland and Wilson, the question as to whether the criminal act of committing the two lesser offenses was done with “malice aforethought” should have been left to the jury.
While Wesley arose in the context of a felony murder theory, its holding fits Doe precisely: a defendant cannot be held liable for murder simply because he participated in an assault; “the question as to whether the criminal act of committing the . . . lesser offenses was done with ‘malice aforethought’ should have been left to the jury.”
Wesley later was expressly approved by the California Supreme Court.
In addition to the offenses of assault with a deadly weapon and burglary with intent to assault, the felony of discharging a firearm at an inhabited dwelling (§ 246) has also been held to merge into a resulting homicide; thus, application of the felony‑murder rule in this situation is similarly prohibited. (People v. Wesley (1970) 10 Cal.App.3d 902, 907 [89 Cal.Rptr. 377].) The Wesley court reasoned that because “The discharge of the firearms by the defendants was the means by which the homicide was committed and was in fact an ‘integral part’ and a ‘necessary element’ of the homicide.” The felony was not independent of the homicide. (Ibid).
People v. Smith (1984) 35 Cal.3d 788, 805.
The state may argue that Wesley is inapplicable because it voided the use of the felony murder rule; here on the other hand, Doe was convicted not on an orthodox felony murder argument, but on the theory that he aided a felony ‑‑ assault with a deadly weapon ‑‑ of which homicide was a “reasonable and probable” consequence.
The two theories, however, are functionally the same. Both permit a murder conviction without a finding of malice on a defendant’s part. Furthermore, for the second degree felony murder rule to operate, the defendant must commit a felony which carries “a high probability that it will result in death.” People v. Patterson (1989) 49 Cal.3d 615, 617. Thus in every second degree felony murder situation, it is “reasonable and probable” that someone will die, because Patterson requires that probability. On the other hand, every crime of which homicide is a “reasonable and probable” result fits the felony murder definition, because such felonies are “inherently dangerous,” the key element of the second degree felony murder rule.
This means that whenever defendants jointly commit an assault with a deadly weapon, and someone dies, as in Wesley, their crime contains the elements of both second degree felony murder and murder under the theory that the homicide was a “reasonable and probable” result of the assault. While such defendants clearly could never be charged under the felony murder doctrine due to the merger rule (Wesley, supra, Smith., supra), they could, were the state’s view to be accepted, always be subjected to a murder charge under the vicarious liability component of the law of aiding and abetting.
Such a holding effectively vitiating the merger doctrine in multiple defendant cases would be irrational. The vice in applying the aiding and abetting theory in this context is the same as that which led to the felony murder rule being barred in assault cases: “it permit[s] a conviction of second degree murder without a finding of the essential element of malice aforethought.” Wilson, 1 Cal.3d at 438. The logic of Ireland plainly prohibits the theory on which Doe was convicted.
There is another, utterly stunning result of the state’s theory which reveals its irrationality. A shooter plainly cannot be tried for murder under a felony murder theory due to the merger rule. If the vicarious liability component of the aiding and abetting rule could be applied to assaults, it would mean one who aided and abetted a shooting committed without malice aforethought could be convicted of murder even though a shooter acting alone could not. Such a difference in liability would be asinine.
Finally, there are profound statutory and constitutional barriers to the acceptance of the aiding and abetting theory on which Doe was convicted. In California there are no crimes other than those created by statute. Penal Code § 6. People v. Brown (1973) 9 Cal.3d 612, 624 (“Only the Legislature and not the courts may make conduct criminal”.) As defined by statute, the crime of murder requires the element of malice aforethought. Penal Code § 187. The only statutory exception to this rule is Penal Code § 189, the first degree felony murder rule. People v. Dillon (1983) 34 Cal.3d 441, 472.
The second degree felony murder rule, on the other hand, is “a judge‑made doctrine without any basis in the Penal Code. . .” Id., at 472 n.19. When used, it penalizes as murder conduct which does not meet the statutory definition of that crime: i.e., homicide with malice. For that reason, although the “second degree felony‑murder doctrine has been a part of California’s criminal law for many decades” (Patterson, 49 Cal. 3d at 621), even conservative members of the present court have questioned whether “the second degree felony‑murder rule stands on solid constitutional ground.” Id., at 641 (Panelli, concurring).
It was the questionable validity of a judge‑made theory of criminal liability that led the Supreme Court to accept the merger rule and ban the use of the felony murder doctrine in cases where assault was the predicate offense. Ireland, supra; Wilson, supra. It would be truly unwise to resurrect the constitutional problems obviated by the merger doctrine by substituting for the discredited felony murder rule another nonstatutory, judge‑made theory of vicarious liability that does not even possess the virtue of antiquity. The state’s novel use of aiding and abetting law to convict of murder a defendant who neither killed nor acted with malice must be rejected.
B. Since There Is No “Misdemeanor‑Murder” Doctrine In California, Doe Cannot Be Convicted Of Murder For Doing No More Than Aiding And Abetting A Misdemeanor.
Since the crime of assault with a deadly weapon is an integral component of any homicide that results from that assault, thereby “merging” into the homicide and precluding use of the felony murder rule, the lesser related offenses of possession of a firearm and brandishing must “merge” for the purposes of the Ireland rule as well. They therefore cannot serve as the predicate for a murder conviction. There are, however, a wealth of additional reasons why the commission or
 Ireland and Wilson, of course, remain good law. People v. Sanders (1990) 51 Cal.3d 471, 509.