PEOPLE v. SATCHELL, 6 Cal.3d 28 (1971)

489 P.2d 1361, 98 Cal.Rptr. 33

Docket No. Crim. 15533.Supreme Court of California. In Bank.
November 4, 1971.

Appeal from Superior Court of the City and County of San Francisco, No. 75543, Lawrence S. Mana, Judge.

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COUNSEL

Brian M. Sax, under appointment by the Supreme Court, and Gregory S. Jensen, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas C. Lynch and Evelle J. Younger, Attorneys General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and Michael J. Phelan, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SULLIVAN, J.

In a two-count indictment defendant John M. Satchell was charged respectively with murder (Pen. Code, § 187) and assault with a deadly weapon upon a peace officer (Pen. Code, § 245, subd. (b)). As

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amended the indictment also alleged four prior felony convictions. Defendant entered pleas of not guilty to the two substantive counts and admitted the four prior convictions. The jury acquitted him of the aggravated assault charged in the second count of the indictment but found him guilty of murder of the second degree. Defendant appeals from the judgment of conviction.

For the reasons set forth below we have concluded that it was prejudicial error for the trial court to instruct the jury on the theory of second degree felony murder. Accordingly we reverse the judgment.

The facts relevant to our determination can be briefly stated. On July 2, 1969, defendant and the victim Jordan became engaged in a heated argument on a public street in San Francisco. The argument progressed beyond mere harsh language when defendant shoved Jordan. The latter then withdrew some distance down the street; defendant went to his automobile, which was parked nearby and got in. A few minutes later Jordan returned and walked over to defendant’s car. The argument then resumed, but it was abruptly terminated when defendant emerged from the car holding a sawed-off shotgun, shot Jordan once in the chest, and then drove off. Jordan died of the shotgun wound.

At trial defendant took the stand and testified that he had shot Jordan, with whom he had had no prior acquaintance, in self-defense when the latter threatened him and made movements which defendant interpreted as efforts to draw a weapon. A defense witness testified that Jordan had a gun in his hand at the time of the shooting, which gun was taken from the victim after defendant had departed.[1]

The trial court instructed the jury on the definition of murder and malice (CALJIC No. 301 (supp.))[2] and the degrees of murder (CALJIC Nos. 302 and 302-A), but it eliminated first degree murder from the consideration of the jury by indicating that none of the felonies enumerated in section 189 of the Penal Code was here involved and by not instructing on premeditation. (See CALJIC No. 303 (supp.).) The jury was fully instructed on second degree murder, however, and the following instruction on second degree felony murder was given: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs

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as a direct causal result of the commission of or attempt to commit a felony inherently dangerous to human life, namely, the crime of possession of a concealable firearm by a felon, and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the second degree. [Par.] The specific intent to commit the crime of possession of a concealable firearm by a felon and the commission of or attempt to commit such crime must be proved beyond a reasonable doubt.”[3]

The trial court went on to give a series of instructions[4]
defining and explaining the crime of possession of a concealable firearm by a felon. (Pen. Code, § 12021; see Pen. Code, §12001.)[5]

Finally, the court gave instructions concerning manslaughter, heat of passion, and provocation,[6] and instructions concerning justifiable homicide and self-defense.[7] Among the manslaughter instructions given was CALJIC No. 310 (supp.), which provided in part: “If a person while committing a felony causes another’s death, malice is implied, and the crime is murder.”[8] (Italics added.)

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The jury deliberated for two full days before reaching their verdict. Four times in the course of their deliberations the jury requested that the court reinstruct them on murder, manslaughter, and justifiable homicide. Questions put to the court by the jury foreman indicate that the jury’s primary concern was the operation of the second degree felony-murder instruction in the context of the other homicide instructions.[9] At the end of the second day of deliberations the jury returned their verdict finding defendant guilty of second degree murder (and not guilty of the aggravated assault charged in the second count of the indictment).

Defendant moved for a new trial on the ground that the second degree felony-murder instruction should not have been given, but the motion was denied. He appeals from the judgment of conviction on the same ground among others.[10] We have concluded that his contention must be sustained.

(1) In the case of People v. Washington (1965) 62 Cal.2d 777, at page 783 [44 Cal.Rptr. 442, 402 P.2d 130], this court struck the keynote which has guided all our subsequent consideration of cases involving the felony-murder doctrine. Acknowledging the substantial body of legal scholarship which has concluded that that doctrine not only “erodes the relation between criminal liability and moral culpability” but also is usually unnecessary for conviction,[11] we went on to say of it: “Although it

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is the law in this state (Pen. Code, § 189), it should not be extended beyond any rational function that it is designed to serve.” (Italics added.)

Applying this principle to various concrete factual circumstances, we have sought to insure that the “highly artificial concept” (People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal.Rptr. 225, 414 P.2d 353]) of strict criminal liability incorporate in the felony-murder doctrine be given the narrowest possible application consistent with its ostensible purpose — which is to deter those engaged in felonies from killing negligently or accidentally (see People v. Washington, supra, 62 Cal.2d 777, 781, and authorities there cited). Thus, for example, we have refused to apply the doctrine in cases wherein the killing is committed by persons other than the defendant or an accomplice acting in furtherance of a common felonious design (People v. Washington, supra, 62 Cal.2d 777, 781-783); in cases wherein the operation of the doctrine depends 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” (People
v. Ireland, supra, 70 Cal.2d 522, 539, fn. omitted; se People v. Wilson (1969) 1 Cal.3d 431, 437-442 [82 Cal.Rptr. 494, 462 P.2d 22], and People v. Sears (1970) 2 Cal.3d 180, 185-189 [84 Cal.Rptr. 711, 465 P.2d 847]; cf. People v Mattison (1971) 4 Cal.3d 177, 185-186 [93 Cal.Rptr. 185, 481 P.2d 193]; People v. Calzada (1970) 13 Cal.App.3d 603
[91 Cal.Rptr. 912]); and in cases wherein the underlying felony is not one of the six enumerated in section 189 of the Penal Code and is not inherently dangerous to human life (see People v Phillips, supra, 64 Cal.2d 574, 582-584; People v. Williams
(1965) 63 Cal.2d 452, 457-458 [47 Cal.Rptr. 7, 406 P.2d 647]).[12]

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(2a) In the instant case it is clear that the victim was killed by defendant while he was engaged in the commission of a felony[13] other than the six enumerated in section 189 of the Penal Code. Thus, in determining whether the felony-murder doctrine is properly applicable the threshhold inquiry is whether the felony in which defendant was engaged was a “felony inherently dangerous to human life” within the meaning o People v. Phillips, supra, 64 Cal.2d 574, and People v Williams, supra, 63 Cal.2d 452. If the felony in question was not such an inherently dangerous felony, the felony-murder instruction given was without legal foundation and the judgment must be reversed if the giving of that instruction was prejudicial.[14]

At the outset it is clear that this court has unequivocally held on more than one occasion that the offense set forth in section 12021 is a felony (see fn. 13, ante) capable of supporting a second degree felony-murder instruction. (Se People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 829] and (1966) 65 Cal.2d 41, 57 [52 Cal.Rptr. 228, 416 P.2d 132]; People v. Schader (1965) 62 Cal.2d 716, 732 [44 Cal.Rptr. 193, 401 P.2d 665]; People v. Robillard (1960)55 Cal.2d 88, 98 [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086].) It is equally clear, however — in light of our continuing concern that the felony-murder doctrine not be extended beyond its rational function — that those decisions cannot be invested with a vitality independent from the developing concept of inherent danger exemplified by our Phillips and Williams
cases. (See fn. 12, ante.) Rather, our task today is to assess the cited decisions as they relate to that concept and determine whether or not the conclusion announced by them is consistent therewith and should endure. “[T]he branch cannot bear fruit by itself, except it abides in the vine.” (John XV, 4.)

(3) It is useful to consider the subject decisions within the chronological development of the principle of inherent danger. That principle, although it was foreshadowed in People v Poindexter (1958) 51 Cal.2d 142,

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at page 149 [330 P.2d 763], was first stated as positive law in People v. Ford (1964) supra, 60 Cal.2d 772 at page 795: “A homicide that is a direct causal result of the commission o a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder.” (Italics added.)[15] That case itself involved a violation of section 12021, and this court, looking to the facts of the particular case and relying on the prior (i.e., pre-Ford) decision in People v. Robillard (1960) supra, 55 Cal.2d 88, 98, concluded that that offense was inherently dangerous to human life and could properly support a second degree felony-murder instruction. This conclusion was followed i People v. Schader (1965) supra, 62 Cal.2d 716, 732, citin Ford and Robillard and again looking to the facts of the particular case which involved the armed holdup of a store by a previously convicted felon.

(4a) However, in 1965 we held that, in assessing whether a felony was inherently dangerous within the meaning of Ford, “we look to the elements of the felony in the abstract, not the particular `facts’ of the case.” (People v. Williams (1965)supra, 63 Cal.2d 452, 458, fn. 5.) There the victim, an illegal supplier of methedrine, was killed with a knife during an affray which resulted after defendants demanded that he pay a debt either in methedrine or in money. The jury was given a second degree felony-murder instruction based upon the crime of conspiracy to possess methedrine without a prescription. We held that the instruction was erroneous because the subject felony, viewed in the abstract “is surely not, as such, inherently dangerous.” (63 Cal.2d at p. 458.)[16]

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The teaching of Williams was applied and explained i People v. Phillips (1966) supra, 64 Cal.2d 574. There the defendant, a chiropractor, was tried for murder following the death from cancer of a patient whom he dissuaded from surgery and purported to treat through chiropractic methods. The jury was given a second degree felony-murder instruction based upon the crime of grand theft by false pretenses. (Pen. Code, §§ 484, 487.) Holding that the crime of grand theft, viewed in the abstract, was not inherently dangerous to human life, we went on to reject the contention of the prosecution that the subject felony should be characterized in light of the defendant’s actual conduct as “grand theft medical fraud,” assertedly an inherently dangerous offense. “To fragmentize the `course of conduct’ of defendant so that the felony-murder rule applies if any segment of that conduct may be considered dangerous to life would widen the rule beyond calculation. It would then apply not only to the commission of specific felonies, which are themselves dangerous to life, but to the perpetration of any felony during which defendant may have acted in such a manner as to endanger life. [Par.] The proposed approach would entail the rejection of our holding in Williams. That case limited the felony-murder doctrine to such felonies as were themselves inherently dangerous to life. That decision eschews the prosecution’s present sweeping concept because, once the Legislature’s own definition is discarded, the number or nature of the contextual elements which could be incorporated into an expanded felony terminology would be limitless. We have been, and remain, unwilling to embark upon such an uncharted sea of felony murder.” (64 Cal.2d at pp. 583-584.)

The opportunity to apply the principles of Williams an Phillips to the offense here in question (Pen. Code, § 12021) arose in the second Ford appeal. (People v. Ford (1966)supra, 65 Cal.2d 41.) However, we did not avail ourselves of that opportunity but instead quoted language from the first (i.e., pre-Williams) appeal in concluding that a conviction of second degree murder was justified on a felony-murder theory.

The foregoing chronological review clearly shows that the prior decisions of this court concerning violation of Penal Code section 12021 as a basis for felony murder have applied a standard different from that required by our Williams an Phillips cases in that they have not undertaken to view that felony in the abstract when assessing the danger to human life inherent in its commission. (5a) Accordingly, in addressing ourselves to that task for the first time today, we decide what is in effect

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a question of novel impression in this court: Viewed in the abstract, is the possession of a concealable firearm by a person who has previously been convicted of a felony an offense inherently dangerous to human life?

We first consider two decisions of the Court of Appeal which have treated this question. In People v. Lovato (1968)258 Cal.App.2d 290 [65 Cal.Rptr. 638], the specific issue before the court was whether the possession of a concealable firearm by an alien (which is also proscribed by section 12021 of the Penal Code) was an offense inherently dangerous to human life capable of supporting a second degree felony-murder instruction. The Court of Appeal, over the dissent of one of the three justices, held that it was not. Viewing the crime in the abstract as required by the Williams-Phillips principle, the court[17]
concluded: “It is common knowledge that several million aliens are living in this country and that the vast majority are peaceful and law-abiding. Undoubtedly, many are serving or have children serving in the armed forces. Consequently, to categorically hold that every alien who is intentionally in possession of a concealable weapon, regardless of the reason, is guilty of an offense inherently dangerous to human life, and hence is guilty of murder in the second degree if the offense results in a homicide, under every possible circumstance we can visualize, would manifestly lead to unjust and even absurd results. Moreover, to in effect state that a person’s citizenship is the controlling factor as to whether a homicide was committed with malice is not only illogical but would constitute an affront to the judiciary which through the years has constantly striven to find compelling reasons rather than arbitrary distinctions before making rules which result in differing treatment of people.” (258 Cal.App.2d at p. 293.)

It was urged upon the court, however, that in light of the line of cases holding that possession of a concealable firearm by felon was inherently dangerous to life (i.e., Schader and the two Ford cases), the same result should follow in cases involving aliens. In answering this contention the court, still applying the Williams-Phillips principle of considering the felony in the abstract, stated: “[W]e conclude that there is a clear, rational and logical distinction between the nature of the offense when committed by an ex-felon and when committed by an alien. An ex-felon by his felony conviction has demonstrated instability and a propensity for crime. Thus, there is a core of logic in the assumption that if such a person arms himself with a concealable weapon he commits a crime per se dangerous to human life. However, a person does not demonstrate instability, nor does he show a tendency toward crime, simply because he is not a citizen of this country.

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Consequently, although it may be reasonable for the Legislature to include aliens within the ambit of section 12021 for regulatory purposes, it would be illogical and unreasonable for a court to hold that every alien who violates the section necessarily commits a crime inherently dangerous to human life.” (Italics added.) (258 Cal.App.2d at pp. 295-296.)

The italicized language, clearly dictum in Lovato, was made the basis of the holding in People v. Asher (1969) 273 Cal.App.2d 876, 899 [78 Cal.Rptr. 885], where it was concluded that manslaughter instructions were properly rejected because the jury’s recourse to evidence of diminished capacity to entertain malice was correctly foreclosed by a second degree felony-murder instruction based upon violation of section 12021 by an ex-felon.

While we agree with the approach and reasoning of the Lovato
court in assessing the danger inherent in the crime of possession of a concealable firearm by an alien, we believe that its dictum concerning such possession by an ex-felon departs from that approach and reasoning and reaches an incorrect conclusion. Thus, we cannot agree that, whereas on the one hand it would be “illogical” and “arbitrary” to conclude “that a person’s citizenship is the controlling factor as to whether a homicide was committed with malice” (258 Cal.App.2d at p. 293), yet on the other hand “there is a core of logic” in the conclusion that the presence or absence of a felony conviction on a person’s past record should have such a controlling effect. The logical process by which this conclusion is reached fails to proceed beyond its own major premise: granting that “[a]n ex-felon by his felony conviction has demonstrated instability and a propensity for crime” (258 Cal.App.2d at p. 295), one cannot logically achieve the conclusion that such a person, when he arms himself, commits a crime inherently dangerous to human life, unless it also be shown that one who so demonstrates instability and a propensity for crime is inherently disposed toward acts dangerous to human life. We do not think that this has been shown. To borrow the phrasing of the Lovato court, we have concluded that “to in effect state that [the presence or absence of a felony conviction on a person’s past record] is the controlling factor as to whether a homicide was committed with malice is not only illogical but would constitute an affront to the judiciary which through the years has constantly striven to find compelling reasons rather than arbitrary distinctions before making rules which result in differing treatment of people.” (258 Cal.App.2d at p. 293.)

(4b) It bears emphasis that, in determining whether a felony is inherently dangerous for purposes of the felony-murder rule we assess that felony in the abstract. The felony here in question is possession of a concealable

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firearm by one who has previously been convicted of a (i.e., another) felony.[18] We do not look to the specific facts of the case before us in order to determine whether, in light of the nature of the particular felony of which defendant was previously convicted, his possession of a concealable firearm was inherently dangerous. Rather, we direct our attention to the genus of crimes known as felonies and determine whether the possession of a concealable firearm by one who has been convicted of any crime within that genus is an act inherently dangerous to human life which, as such, justifies the extreme consequence (i.e., imputed malice) which the felony-murder doctrine demands.

It is manifest that the range of antisocial activities which are criminally punishable as felonies in this state is very wide indeed. Some of these felonies, such as certain well-known crimes against the person of another, distinctly manifest a propensity for acts dangerous to human life on the part of the perpetrator. Others, of which a random sampling is set forth in the margin,[19] just as distinctly fail to manifest such a propensity. Surely it cannot be said that a person who has committed a crime in this latter category, when he arms himself with a concealable weapon, presents a danger to human life so significantly more extreme than that presented by a nonfelon similarly armed[20] as to justify the imputation of malice to him if a homicide should result. (5b) Accordingly, because we can conceive of such a vast number of situations wherein it would be grossly illogical to impute malice, we must conclude that the violation of section 12021 by one previously convicted of a felony is not itself a felony inherently dangerous

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to human life which will support a second degree felony-murder instruction.

(2b) Thus, it was error in this case to give a second degree felony-murder instruction based upon defendant’s violation of section 12021 of the Penal Code. That error was clearly prejudicial because it “relieved the jury of the necessity of finding one of the elements of the crime of murder” (People v Phillips, supra, 64 Cal.2d 574, 584), to wit, malice aforethought. “The denial of defendant’s right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section [13].” (Id. at p. 585.) The judgment must, therefore, be reversed.

Our consideration of an issue which may arise upon retrial reveals an even more fundamental reason why the felony-murder instruction was erroneous in this case.

(5c) Although the jury was given a second degree felony-murder instruction based upon section 12021 of the Penal Code, it was not given such an instruction based upon section 12020 of the same code. That section, which is set forth in full in the margin,[21] provides in substance as here relevant tha any person who possesses a sawed-off shotgun is guilty of a felony. Because a second degree felony-murder instruction based on section 12020 may be offered on retrial, we deem it incumbent to determine whether the offense proscribed by that section, viewed in the abstract, is inherently dangerous to human life. We conclude that it is not, and that therefore a violation of section 12020 may not properly support a second degree felony-murder instruction.

(6) This court has stated that the purpose of the Legislature in enacting section 12020 was to outlaw the possession of “weapons common to the criminal’s arsenal. . . .” (People v Grubb (1965) 63 Cal.2d 614, 620 [47 Cal.Rptr. 772, 408 P.2d 100].) This purpose proceeds from the recognition

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that persons who possess the specialized instruments of violence listed in the section are ordinarily persons who intend to use them in violent and dangerous enterprises. Thus, rather than simply proscribing the use of such instruments, the Legislature has sought to prevent such use by proscribing their mer possession. In order to insure the intended prophylactic effect, the intent or propensity for violence of the possessor has been rendered irrelevant. Thus, in People v. Ferguson
(1933) 129 Cal.App. 300 [18 P.2d 741], the defendant was convicted of possessing “metal knuckles” under the subject section. There was evidence that he received the knuckles from his father; that he never carried them on his person; and that he kept them as a keepsake or curio. The Court of Appeal held that the purpose or motive for possession was irrelevant to the defendant’s conviction. While withholding any opinion upon the question whether a museum keeper could be convicted under the same section, the court said: “It is evident to us that the effective prohibition of the criminal use of weapons of this sort depends upon the right to prohibit possession thereof, and that the law does not intend to and does not in fact make any exceptions of heirlooms, curios or keepsakes of individuals.” (129 Cal.App. at p. 305; see also People v. Stinson (1970)8 Cal.App.3d 497 [87 Cal.Rptr. 537]; People v. McKinney
(1935) 9 Cal.App.2d 523 [50 P.2d 827]; cf. People v. Grubb, supra, 63 Cal.2d 614, 621, fn. 9; People v. Deane (1968)259 Cal.App.2d 82 [66 Cal.Rptr. 177].)

While we have no doubt that — as the Ferguson court held — the proscription of the mere possession of articles of this sort lies within the constitutional competency of the Legislature, we decline to hold that such a statute, which makes no distinction between the innocent “collector” and the hardened criminal, can be utilized to posit malice aforethought in a prosecution for murder. Looking at the subject felony in the abstract, as we are required to do, it appears that to permit the application of the felony-murder doctrine on the ground of violation of section 12020 would “erode the relation between criminal liability and moral culpability” beyond all recognition and would extend the operation of that doctrine “beyond any rational function that it is designed to serve.” (People v. Washington, supra, 62 Cal.2d 777, 783.)

Viewing the matter from the standpoint of inherent danger, we find it difficult to understand how any offense of mere passive possession can be considered to supply the element of malice in a murder prosecution. To be sure, if such possession is of an extremely reckless nature manifesting a conscious disregard for human life, malice may be imputed by means of basic murder principles. (See fn. 11, ante.) Moreover, if passive possession

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ripens into a felonious act in which danger to human life is inherent,[22] the purpose of the felony-murder rule is served by its application — for it is the deterrence of such acts by felons which the rule is designed to accomplish. However, mere possession in itself — ignoring the propensities and conduct of the possessor — is essentially neutral in its intentional aspect and should not serve as the basis for the imputation of malice.

(7) We emphasize in closing that our decision in this case, by refusing to permit application of the felony-murder doctrine to the felonies here in question, does not thereby insulate from murder liability all those who kill while engaged in the commission of such felonies. Under well-settled principles of criminal liability a person who kills — whether or not he is engaged in an independent felony at the time — is guilty of murder if he acts with malice aforethought. The felony-murder doctrine, whose ostensible purpose is to deter those engaged in felonies from killing negligently or accidentally, operates to posit the existence of that crucial mental state — and thereby to render irrelevant evidence of actual malice or the lack thereof — when the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it. When the killer is not engaged in such a felony, however, and the imputation of malice through the doctrine is therefore precluded, still it may be shown in accordance with normal murder principles that the fatal act was done with malice aforethought and, therefore, constitutes murder. Thus, the determination that an underlying felony will not properly support a felony-murder instruction simply removes the short-circuit provided by that doctrine and requires that the existence of the crucial mental state be demonstrated to the trier of fact.

The judgment is reversed.

Wright, C.J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.

McCOMB, J.

I dissent. I would affirm the judgment because I do not believe the error has resulted in a miscarriage of justice. The judgment, therefore, should not be reversed, for the reason that article VI, section 13, of the California Constitution provides: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the

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jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

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